     Case: 19-50769      Document: 00515324558         Page: 1    Date Filed: 02/27/2020




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


                                    No. 19-50769
                                                                                FILED
                                                                         February 27, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
Consolidated with 19-50771

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

REYNALDO ESPARZA-LOPEZ,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:17-CR-653-1
                            USDC No. 2:19-CR-339-1

Before DAVIS, SMITH and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Reynaldo Esparza-Lopez appeals from a judgment revoking his
previously-imposed supervised release and from a judgment of conviction on
his guilty plea to illegal reentry into the United States 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


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50769    Document: 00515324558    Page: 2   Date Filed: 02/27/2020


                                No. 19-50769
                              c/w No. 19-50771

term of imprisonment to 10 years for his illegal reentry offense, 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. As he concedes, the issue 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 decisions indicate that the Supreme Court may
reconsider its holding in Almendarez-Torres.
      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. Rojas-Luna, 522 F.3d 502, 505-06
(5th Cir. 2008) (considering the effect of Apprendi v. New Jersey, 530 U.S. 466
(2000)). Thus, Esparza-Lopez’s argument is foreclosed.
      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 judgments of the district court are AFFIRMED.




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