     Case: 19-10471      Document: 00515281405         Page: 1    Date Filed: 01/22/2020




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

                                                                              FILED
                                    No. 19-10471                        January 22, 2020
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EDGARDO NAVARRO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-279-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Edgardo Navarro appeals his sentence to 27 months of imprisonment
and three years of supervised release following his guilty plea conviction for
illegal reentry. He contends that the enhancement of his sentence pursuant to
8 U.S.C. § 1326(b)(2) is unconstitutional because the fact of a prior conviction
must be charged and proved to a jury beyond a reasonable doubt. While
Navarro acknowledges this argument is foreclosed by Almendarez-Torres v.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10471   Document: 00515281405      Page: 2   Date Filed: 01/22/2020


                                 No. 19-10471

United States, 523 U.S. 224 (1998), he nevertheless seeks to preserve it for
possible Supreme Court review.
      The Supreme Court held in Almendarez-Torres that for purposes of a
statutory sentencing enhancement, a prior conviction is not a fact that must
be alleged in an indictment or found beyond a reasonable doubt by a jury. 523
U.S. at 239-47. This court has held that subsequent Supreme Court decisions
such as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New
Jersey, 530 U.S. 466 (2000), 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). Thus, Navarro is correct that
his argument is foreclosed, and summary affirmance is appropriate.           See
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
      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 district court’s judgment is AFFIRMED.




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