     Case: 18-11205      Document: 00515047560         Page: 1    Date Filed: 07/24/2019




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

                                                                                 FILED
                                    No. 18-11205                             July 24, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CARLA LEON-TORRES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-104-1


Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Carla Leon-Torres appeals the 30-month within-guidelines sentence
imposed following her guilty plea conviction of illegal reentry after removal
from the United States. She argues that her indictment alleged only those
facts sufficient for a conviction under 8 U.S.C. § 1326(a) and did not include
any allegations of a prior conviction necessary for a sentence under
§ 1326(b)(1).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11205    Document: 00515047560       Page: 2   Date Filed: 07/24/2019


                                   No. 18-11205

      According to Leon-Torres, her sentence under § 1326(b)(1) violates her
due process rights by exceeding the two-year statutory maximum imposed by
§ 1326(a). She concedes that this argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 226-27 (1998), but seeks to preserve the issue
for further review.   The Government has moved unopposed for summary
affirmance, agreeing that the issue is foreclosed; in the alternative, the
Government moves for an extension of time to file a brief.
      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
an element of the offense that must be alleged in the 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, e.g., 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, Leon-Torres’s argument is foreclosed and
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 of the district court is AFFIRMED.                  The
Government’s alternative motion for an extension of time to file a brief is
DENIED.




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