     Case: 18-40283      Document: 00514887206         Page: 1    Date Filed: 03/25/2019




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

                                                                              FILED
                                    No. 18-40283                        March 25, 2019
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MIGUEL ESPARZA-SALAZAR,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:17-CR-644-1


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Miguel Esparza-Salazar appeals the below-guidelines sentence of 84
months of imprisonment for his conviction of illegal reentry after deportation,
in violation of 8 U.S.C. § 1326(a) & (b)(1). After Esparza-Salazar pleaded guilty
and the district court accepted the plea, he and the Government entered a so-
called “plea agreement” that contained, in part, a sentencing recommendation.
The agreement also contained an appeal waiver, which the Government now


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40283    Document: 00514887206     Page: 2   Date Filed: 03/25/2019


                                 No. 18-40283

seeks to enforce. Esparza-Salazar argues that the appeal waiver is ineffective
because the district court failed to review its terms with him, as required by
Federal Rule of Criminal Procedure 11(b)(1)(N). Because the appeal waiver is
ineffective, Esparza-Salazar argues, this court can consider the merits of his
appeal.   As to the merits, Esparza-Salazar argues that the district court
improperly sentenced him to more than two years of imprisonment because the
§ 1326(b) statutory enhancement is unconstitutional, particularly where, as
here, it was not pleaded in the indictment and proven beyond a reasonable
doubt.    Esparza-Salazar correctly concedes that the issue is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but seeks to preserve
the argument for possible Supreme Court review.
      In the interest of judicial efficiency, we pretermit the non-jurisdictional
appeal waiver issue and proceed to the merits. See United States v. Story, 439
F.3d 226, 230-31 (5th Cir. 2006). 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. We have held that
subsequent Supreme Court decisions did not overrule Almendarez-Torres. See
United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v.
Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007).
      Because Esparza-Salazar’s sole argument on the merits is foreclosed, we
AFFIRM the judgment of the district court.




                                       2
