Case: 20-50156     Document: 00515537872         Page: 1    Date Filed: 08/24/2020




            United States Court of Appeals
                 for the Fifth Circuit
                                                                    United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
                                                                     August 24, 2020
                                No. 20-50156                          Lyle W. Cayce
                              Summary Calendar                             Clerk



 United States of America,

                                                           Plaintiff—Appellee,

                                     versus

 Ronald Perez-Jacome, also known as Ronald Jarome Perez,
 also known as Eres De Jesus-Perez, also known as Eres Perez,

                                                       Defendant—Appellant.


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 1:19-CR-294-1


 Before Southwick, Duncan, and Oldham, Circuit Judges.
 Per Curiam:*
        Ronald Perez-Jacome appeals his conviction for illegal reentry into the
 United States. He argues that the enhanced sentencing range in § 1326(b) is
 unconstitutional because a prior conviction is an element of the offense that



        *
          Pursuant to 5th Circuit Rule 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 opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-50156     Document: 00515537872         Page: 2     Date Filed: 08/24/2020




                                  No. 20-50156


 must be alleged in the indictment or found by a jury beyond a reasonable
 doubt. He concedes that the issue is foreclosed by Almendarez-Torres v.
 United States, 523 U.S. 224 (1998), but he wishes to preserve it for further
 review. The Government has filed an unopposed motion for summary
 affirmance, agreeing that the issue is foreclosed by Almendarez-Torres.
 Alternately, the Government requests an extension of time to file its brief.
        In Almendarez-Torres, 523 U.S. at 226-27, the Supreme Court held
 that a prior conviction used to enhance a sentence under § 1326(b) is a
 sentencing factor, not an element of the offense. Neither Apprendi v. New
 Jersey, 530 U.S. 466, 476, 490 (2000), nor subsequent Supreme Court cases
 overruled Almendarez-Torres, which remains binding precedent. See United
 States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Garza-
 Lopez, 410 F.3d 268, 276 (5th Cir. 2005). Accordingly, Perez-Jacome’s sole
 appellate argument is foreclosed by Almendarez-Torres.
        Because the Government’s position “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 (5th Cir. 1969), 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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