     Case: 18-50761      Document: 00514898009         Page: 1    Date Filed: 04/02/2019




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


                                    No. 18-50761
                                                                                FILED
                                                                             April 2, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE MATIAS-VICENTE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:18-CR-158-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Jose Matias-Vicente appeals the 37-month within-guidelines sentence
imposed following his guilty plea conviction for illegal reentry after having
been previously deported. He argues that his indictment did not allege that he
had a prior conviction and that, therefore, his sentence under 8 U.S.C.
§ 1326(b) violates his due process rights by exceeding the two-year statutory
maximum provided by § 1326(a). He concedes that this argument is foreclosed


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50761     Document: 00514898009    Page: 2   Date Filed: 04/02/2019


                                 No. 18-50761

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. The Government has moved for summary affirmance, urging that
the issue is foreclosed.
      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 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, Matias-Vicente’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 unopposed motion for summary
affirmance is GRANTED, the alternative motion for an extension of time is
DENIED, and the judgment of the district court is AFFIRMED.




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