     Case: 17-50296      Document: 00514353275         Page: 1    Date Filed: 02/20/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 17-50296
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                       February 20, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff–Appellee

v.

SANTOS LORENZO MEMBRENO-AREVALO,

                                                 Defendant–Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:16-CR-332-1


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Santos Lorenzo Membreno-Arevalo appeals the 71-month within-
guidelines sentence and three-year term of supervised release imposed
following his guilty plea conviction for illegal reentry. He argues that his
sentence violates due process because it exceeds the statutory maximum
sentence of 8 U.S.C. § 1326(a).          He concedes that the issue whether his
eligibility for a sentencing enhancement under § 1326(b) must be alleged in the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50296    Document: 00514353275     Page: 2   Date Filed: 02/20/2018


                                 No. 17-50296

indictment and proved to a jury is foreclosed 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, 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. 523
U.S. at 239-47. 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, Membreno-Arevalo’s argument is foreclosed.
      Accordingly, the Government’s motion for summary affirmance is
GRANTED, 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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