     Case: 18-51069      Document: 00515148728         Page: 1    Date Filed: 10/07/2019




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

                                    No. 18-51069                            FILED
                                  Summary Calendar                    October 7, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALBINO RAMIREZ-MARQUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:17-CR-1431-1


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Albino Ramirez-Marquez appeals the 39-month term of imprisonment
and three-year term of supervised release imposed after he pleaded guilty to
illegal reentry after deportation. He argues that his sentence 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 indictment and proven to a jury is foreclosed by Almendarez-


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-51069    Document: 00515148728     Page: 2   Date Filed: 10/07/2019


                                 No. 18-51069

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. 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) (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)).
Ramirez-Marquez’s argument is thus 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 as unnecessary, and the judgment of the district court
is AFFIRMED.




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