     Case: 17-51144      Document: 00514701521         Page: 1    Date Filed: 10/29/2018




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

                                    No. 17-51144                            FILED
                                  Summary Calendar                    October 29, 2018
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee

v.

ISMAEL ROMERO-MENDOZA,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:17-CR-285-1


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Ismael Romero-Mendoza appeals the 30-month within-guidelines
sentence imposed following his guilty plea conviction for illegal reentry. He
first argues that his sentence under 8 U.S.C. § 1326(b)(2) violates due process
because it exceeds the statutory maximum sentence of § 1326(a). He concedes
that the issue whether his eligibility for a sentencing enhancement under
§ 1326(b) must be alleged in the indictment and proved to a jury 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-51144

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, Romero-Mendoza’s argument is foreclosed.
      Second, Romero-Mendoza argues for the first time that the district court
erroneously characterized his prior Texas conviction for aggravated assault as
an aggravated felony for the purpose of § 1326(b)(2) and that he is entitled to
resentencing. We review for plain error, which requires Romero-Mendoza to
show (1) a forfeited error (2) that is clear and obvious, and (3) that affects his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
can satisfy these three requirements, this court has the discretion to remedy
the error if it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Id. (internal quotation marks and citation omitted).
      Because Romero-Mendoza was sentenced under the 2016 version of the
Guidelines, his guidelines range was not calculated based on the
characterization of his prior conviction for Texas aggravated assault.
Furthermore, the record does not indicate that the district court’s selection of
a 30-month sentence—within the correctly calculated guidelines range and



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                                  No. 17-51144

below the ten-year § 1326(b)(1) statutory maximum—was affected by any belief
that the statutory maximum sentence was 20 years pursuant to § 1326(b)(2),
rather than ten years pursuant to § 1326(b)(1).             See United States v.
Mondragon-Santiago, 564 F.3d 357, 368-69 (5th Cir. 2009). Romero-Mendoza
therefore fails to establish plain error.       See Puckett, 556 U.S. at 135;
Mondragon-Santiago, 564 F.3d at 369.             Additionally, because Romero-
Mendoza’s judgment refers only to § 1326, and does not refer to any subsection
of § 1326(b) or aggravated felony, there is no error in the judgment. See United
States v. Ovalle-Garcia, 868 F.3d 313, 314 (5th Cir. 2017).
      Accordingly, the judgment of the district court is AFFIRMED.             The
Government’s motion for summary affirmance is DENIED. The Government’s
motion for an additional thirty days to file its Appellee’s brief is denied as moot.




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