     Case: 19-51149      Document: 00515468792         Page: 1    Date Filed: 06/26/2020




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

                                                                              FILED
                                    No. 19-51149                          June 26, 2020
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALEX MURILLO, also known as Juan Carlos Diaz-Segarra, also known as
Juan Diaz, also known as Alex Murrillo, also known as Alexander Murillo-
Quinones, also known as Emmanuel Martinez-Lomba,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:19-CR-160-1


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Alex Murillo appeals his sentence of 60 months of imprisonment and
three years of supervised release, which the district court imposed following
his guilty plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326. He
argues that the enhancement of his sentence based on his prior conviction
pursuant to § 1326(b)(1), which increased the statutory maximum terms of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-51149    Document: 00515468792     Page: 2   Date Filed: 06/26/2020


                                 No. 19-51149

imprisonment and supervised release, is unconstitutional because his prior
conviction is treated as a sentencing factor rather than an element of the
offense that must be alleged in the indictment and 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 seeks to preserve the issue
for further review. The Government moves for summary affirmance, urging
that Murillo’s argument is foreclosed.
      The parties are correct that Murillo’s argument is foreclosed by
Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir.
2014); United States v. Rojas-Luna, 522 F.3d 502, 505-06 (5th Cir. 2008).
Accordingly, the Government’s motion for summary affirmance is GRANTED,
see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), 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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