     Case: 18-50280      Document: 00514696415         Page: 1    Date Filed: 10/24/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-50280                     United States Court of Appeals

                                  Summary Calendar
                                                                              Fifth Circuit

                                                                            FILED
                                                                     October 24, 2018

UNITED STATES OF AMERICA,                                              Lyle W. Cayce
                                                                            Clerk
                                                 Plaintiff-Appellee

v.

JOSE ROBERTO GOMEZ-VAZQUEZ, also known as Jose Roberto Vasquez-
Villegas, also known as Jose Roberto Vasquez-Vilegas,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:17-CR-2559-1


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Jose Roberto Gomez-Vazquez appeals the 57-month within-guidelines
sentence imposed following his guilty plea conviction for attempted illegal
reentry. He argues that his indictment did not allege that he had a prior
conviction and that, therefore his sentence under 8 U.S.C. § 1326(b)(1) violates
his due process rights by exceeding the two-year statutory maximum provided



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50280    Document: 00514696415       Page: 2   Date Filed: 10/24/2018


                                   No. 18-50280

by § 1326(a). He concedes that this argument 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, 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.    This court has held that subsequent Supreme Court
decisions did not overrule Almendarez-Torres.        See, e.g., 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, Gomez-Vazquez’s argument is foreclosed and
summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406
F.2d 1158, 1162 (5th Cir. 1969).
      Accordingly, the government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED.




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