     Case: 19-10958      Document: 00515425049         Page: 1    Date Filed: 05/21/2020




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

                                                                                FILED
                                    No. 19-10958                            May 21, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MIGUEL ANGEL BAEZ-CASTILLO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:19-CR-58-1


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Miguel Angel Baez-Castillo appeals his conviction and 60-month
sentence for illegal presence in the United States under 8 U.S.C. § 1326(b)(1).
He asserts that the fact of a prior felony conviction was an element of the
offense that was not alleged in the indictment or admitted by him as required
by the Sixth Amendment and historical common-law practices. He concedes
that the issue is foreclosed by Almendarez-Torres v. United States, 523 U.S.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10958    Document: 00515425049       Page: 2   Date Filed: 05/21/2020


                                No. 19-10958

224 (1998). Baez-Castillo contends, however, that the Supreme Court has not
considered the historical common law approach to pleading prior convictions
since Almendarez-Torres, although its Sixth Amendment jurisprudence
subsequently evolved to apply the common law practice of defining elements
in Apprendi v. New Jersey, 530 U.S. 466, 477-83 (2000). He seeks to preserve
for further review this historical challenge to treating prior convictions as
sentencing factors rather than elements of the offense.
      The Government has moved for summary affirmance or, alternatively,
an extension of time to file a brief.       Because Baez-Castillo’s argument is
foreclosed, 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, and the judgment is AFFIRMED. The
Government’s alternative motion for an extension of time to file a brief is
DENIED.




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