     Case: 19-50120      Document: 00515125154         Page: 1    Date Filed: 09/19/2019




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

                                    No. 19-50120
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                     September 19, 2019
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


                                                 Plaintiff-Appellee

v.

RUBEN MENDEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:18-CR-25-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Ruben Mendez appeals the 84-month, within-guidelines sentence and
three-year term of supervised release imposed following his guilty-plea
conviction for illegal reentry into the United States.             He argues that the
enhancement of his sentence under 8 U.S.C. § 1326(b)(1), which increased the
maximum term of imprisonment to 10 years, is unconstitutional because the
provision is treated as a sentencing factor rather than as an element of a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50120    Document: 00515125154    Page: 2   Date Filed: 09/19/2019


                                No. 19-50120

separate offense that must be proved to a jury beyond a reasonable doubt. He
concedes that the issue whether a sentencing enhancement under § 1326(b)
must be alleged in the indictment and proved to a jury is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998). However, he seeks
to preserve the issue for possible Supreme Court review because, he argues,
subsequent Supreme Court decisions indicate that the Court may reconsider
this issue.
      In Almendarez-Torres, 523 U.S. at 239-47, the Supreme Court held that
for purposes of 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) (considering the effect of Alleyne v. United
States, 570 U.S. 99 (2013)); United States v. Pineda-Arrellano, 492 F.3d 624,
625-26 (5th Cir. 2007) (considering the effect of Apprendi v. New Jersey, 530
U.S. 466 (2000)). Thus, Mendez’s argument is foreclosed.
      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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