     Case: 18-10591      Document: 00514870721         Page: 1    Date Filed: 03/13/2019




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

                                                                                  FILED
                                    No. 18-10591                            March 13, 2019
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ERNESTO BETANCOURT-CARRILLO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-229-1


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Ernesto Betancourt-Carrillo appeals his 30-month below-guideline
sentence imposed following his guilty plea to illegal reentry in violation of 8
U.S.C. § 1326. He argues that his sentence violates his due process rights and
his Sixth Amendment right to a jury trial because it exceeds the statutory
maximum charged and the maximum sentence available based on the facts
that he admitted at rearraignment.             He concedes that this argument is


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10591    Document: 00514870721        Page: 2   Date Filed: 03/13/2019


                                 No. 18-10591

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 that subsequent Supreme Court decisions indicate that the
Court may reconsider this issue. The Government has moved for summary
affirmance, urging that the issue is foreclosed.
      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); United States v. Pineda-Arrellano,
492 F.3d 624, 625-26 (5th Cir. 2007). Thus, Betancourt-Carrillo’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 unopposed motion for summary
affirmance is GRANTED, the alternative motion for an extension of time is
DENIED, and the judgment of the district court is AFFIRMED.




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