     Case: 20-50006      Document: 00515504234         Page: 1    Date Filed: 07/27/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 20-50006                            July 27, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

KEVIN WILMAR GARCIA-VASQUEZ, also known as Kevin Wilmar Portillo-
Garcia,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:19-CR-603-1


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Kevin Wilmar Garcia-Vasquez appeals the 27-month sentence imposed
following his guilty plea conviction for being found unlawfully in the United
States following a previous removal.               He argues that the recidivism
enhancement under 8 U.S.C. § 1326(b) is unconstitutional because it allows a
sentence above the otherwise applicable statutory maximum based on facts



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 20-50006     Document: 00515504234      Page: 2   Date Filed: 07/27/2020


                                  No. 20-50006

that are neither alleged in the indictment or found by a jury beyond a
reasonable doubt. Garcia-Vasquez correctly concedes that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
raises the issue to preserve for further possible review. See United States v.
Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda-Arrellano,
492 F.3d 624, 625–26 (5th Cir. 2007).
      The Government has filed an unopposed motion for summary affirmance
and, alternatively, seeks an extension of time to file its brief. Because the issue
is foreclosed, summary affirmance is appropriate. See Groendyke Transp., Inc.
v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
      Accordingly, the Government’s motion for summary affirmance is
GRANTED; the Government’s alternative motion for an extension of time to
file a brief is DENIED; and, the judgment of the district court is AFFIRMED.




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