     Case: 20-50154      Document: 00515508186         Page: 1    Date Filed: 07/29/2020




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

                                                                          FILED
                                                                        July 29, 2020
                                    No. 20-50154
                                  Summary Calendar                     Lyle W. Cayce
                                                                            Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALEJANDRO TOVAR-REGALADO, also known as Alejandro Tovar, also
known as Alejandro Regalado,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:19-CR-226-1


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM:*
       Alejandro Tovar-Regalado appeals the 30-month sentence imposed after
his guilty plea conviction for illegal reentry after deportation. He asserts that
his sentence was imposed under an unconstitutional sentencing provision, i.e.,
8 U.S.C. § 1326(b)(1). He suggests that § 1326(b) impermissibly provides that
a defendant’s sentence can be enhanced even if the fact of a prior conviction 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 20-50154     Document: 00515508186      Page: 2   Date Filed: 07/29/2020


                                  No. 20-50154

not alleged in the indictment and proved beyond a reasonable doubt. Tovar-
Regalado correctly concedes that his claim is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he raises the issue to preserve it for
further possible review. 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).
      The Government has filed an unopposed motion for summary affirmance
and, alternatively, seeks an extension of time to file its brief. Because the issue
is foreclosed, summary affirmance is appropriate. See Groendyke Transp., Inc.
v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
      Thus, 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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