     Case: 19-10643      Document: 00515316510         Page: 1    Date Filed: 02/20/2020




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


                                    No. 19-10643
                                                                                FILED
                                                                        February 20, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROBERTO GONZALEZ-GATICA, also known as Pedro Garcia-Gonzalez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:18-CR-213-1


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Roberto Gonzalez-Gatica appeals the 45-month, below-guidelines
sentence imposed following his guilty plea for illegal reentry after removal
from the United States. He contends that his sentence is unconstitutional
because his indictment alleged only those facts sufficient for a conviction under
§ 1326(a) and did not include any allegations of a prior conviction necessary for
a sentence enhancement under § 1326(b)(2). Relatedly, he asserts that his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10643     Document: 00515316510        Page: 2   Date Filed: 02/20/2020


                                     No. 19-10643

guilty plea was involuntary and that the district court violated Federal Rule of
Criminal Procedure 11(c)(1) because it did not admonish him that the fact of a
prior conviction is an essential element of the offense. Thus, Gonzalez-Gatica
argues that the district court erred in sentencing him to a term of
imprisonment greater than the two-year maximum under § 1326(a).                  He
concedes that this argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 226-27 (1998), but seeks to preserve the issue for further
review. The Government filed an unopposed motion for summary affirmance,
agreeing that the issue is foreclosed, and in the alternative, a motion for an
extension of time to file a brief.
      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 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, Gonzalez-Gatica’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 motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED.                    The
Government’s alternative motion for an extension of time to file a brief is
DENIED as moot.




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