     Case: 19-10129      Document: 00515095284         Page: 1    Date Filed: 08/28/2019




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

                                    No. 19-10129                               FILED
                                  Summary Calendar                       August 28, 2019
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ABRAHAM CONDE-HERRERA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-232-1


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Abraham Conde-Herrera appeals his above-guidelines sentence of 31
months of imprisonment and two years of supervised release on his conviction
for illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(1). He argues that
the district court: (1) violated Federal Rule of Criminal Procedure 11 and
erroneously accepted his involuntary guilty plea because he was not
admonished that his prior felony conviction was an essential element of the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10129     Document: 00515095284    Page: 2   Date Filed: 08/28/2019


                                 No. 19-10129

offense that must be proved beyond a reasonable doubt and (2) erroneously
sentenced him under § 1326(b)(1) because that enhanced sentencing provision
is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and
subsequent decisions.     Conde-Herrera concedes that his arguments are
unpreserved and subject to review for plain error. See Puckett v. United States,
556 U.S. 129, 135 (2009); United States v. Mondragon-Santiago, 564 F.3d 357,
361 (5th Cir. 2009).
      The Government has filed an unopposed motion for summary affirmance
arguing that Conde-Herrera’s arguments are foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998). As Conde-Herrera concedes that his
arguments are foreclosed by this decision, 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,
and the judgment is AFFIRMED. The Government’s alternative motion for an
extension of time to file a brief is DENIED.




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