     Case: 19-50094      Document: 00515097055         Page: 1    Date Filed: 08/29/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 19-50094
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          August 29, 2019
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                  Plaintiff-Appellee

v.

SANTOS ALONSO-MARTINEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:18-CR-93-1


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Santos    Alonso-Martinez        appeals    the    48-month      above-guidelines
sentence and three-year term of supervised release imposed following his
guilty plea conviction for illegal reentry into the United States. He argues that
the enhancement of his sentence pursuant to 8 U.S.C. § 1326(b)(1), which
increased the maximum term of imprisonment to ten years of imprisonment,
is unconstitutional because of the treatment of the provision as a sentencing


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50094    Document: 00515097055    Page: 2   Date Filed: 08/29/2019


                                No. 19-50094

factor rather than as an element of a separate offense that must be proved to
a jury beyond a reasonable doubt. He concedes that the issue whether a
sentencing enhancement under § 1326(b) must be alleged in the 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, Alonso-Martinez’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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