     Case: 19-50787      Document: 00515384425        Page: 1     Date Filed: 04/16/2020




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

                                                                               FILED
                                   No. 19-50787                            April 16, 2020
                                 Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk



UNITED STATES OF AMERICA,

                                                Plaintiff−Appellee,

versus

JUAN GABRIEL SANCHEZ-HERNANDEZ,

                                                Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 2:19-CR-80-1




Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *

      Juan Sanchez-Hernandez appeals the 57-month within-guidelines



      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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: 19-50787     Document: 00515384425     Page: 2   Date Filed: 04/16/2020


                                  No. 19-50787

sentence and three-year term of supervised release imposed for his conviction
of illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(1). He contends that
the sentence enhancement provisions of § 1326(b) are unconstitutional viola-
tions of due process because they increase the mandatory minimum sentences
based on prior convictions that do not have to be proven to a jury beyond a
reasonable doubt. He concedes that the issue of whether his eligibility for an
enhancement under § 1326(b) must be proved to a jury is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998). He seeks only to
preserve the issue for possible Supreme Court review because, he maintains,
subsequent Supreme Court decisions indicate that the Court may reconsider
the issue.

      The government moves for summary affirmance or, alternatively, an
extension of time to file its brief. Summary affirmance is appropriate where,
among other instances, “the position of one of the parties is clearly right as a
matter of law so that there can be no substantial question as to the outcome of
the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162-63 (5th Cir.
1969). In Almendarez-Torres, 523 U.S. at 239−47, the Court held that for a
statutory sentencing enhancement, a prior conviction is not a fact that must
be alleged in an indictment or found by a jury beyond a reasonable doubt. This
court has held that subsequent Supreme Court decisions did not overrule
Almendarez-Torres. 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).
Thus, Sanchez-Hernandez’s argument is foreclosed.

      The motion for summary affirmance is GRANTED, and the judgment is
AFFIRMED. The motion for an extension is DENIED.




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