     Case: 18-50219      Document: 00514760012         Page: 1    Date Filed: 12/13/2018




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

                                                                                   FILED
                                    No. 18-50219                           December 13, 2018
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GUSTAVO ZAVALA-DELGADO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:17-CR-375-1


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Gustavo Zavala-Delgado appeals the 30-month guidelines sentence and
3-year term of supervised release imposed following his guilty plea conviction
for illegal reentry. He argues that his sentence enhancement under 8 U.S.C.
§ 1326(b)(1) is unconstitutional because it exceeded the statutory maximum
sentence of § 1326(a) charged in the indictment. He concedes that the issue
whether a sentencing enhancement under § 1326(b) must be alleged in the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50219    Document: 00514760012    Page: 2   Date Filed: 12/13/2018


                                No. 18-50219

indictment and proved to a jury 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 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. 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, Zavala-Delgado’s argument is 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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