     Case: 18-10326      Document: 00514714572         Page: 1    Date Filed: 11/07/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                    No. 18-10326                            FILED
                                  Summary Calendar                  November 7, 2018
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk


                                                 Plaintiff-Appellee

v.

JOSE LUIS BERNAL-GAITAN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-145-1


Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
       Jose Luis Bernal-Gaitan appeals the three-year term of supervised
release imposed following his guilty plea conviction for illegal reentry after
removal. 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 indictment and proven to a jury is foreclosed by


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10326    Document: 00514714572     Page: 2   Date Filed: 11/07/2018


                                 No. 18-10326

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 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)).
Bernal-Gaitan’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, and the judgment of the district court is AFFIRMED.




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