     Case: 17-50404      Document: 00514297934         Page: 1    Date Filed: 01/08/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 17-50404                                 FILED
                                  Summary Calendar                         January 8, 2018
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GERARDO MADRID,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:16-CR-1095-1


Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
       Gerardo Madrid appeals the 30-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 his
sentence violates due process because it exceeds the statutory maximum
sentence provided in 8 U.S.C. § 1326(a).            Madrid concedes that the issue
whether his eligibility for a sentencing enhancement under § 1326(b) must be


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50404     Document: 00514297934      Page: 2   Date Filed: 01/08/2018


                                  No. 17-50404

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. Subsequent Supreme Court decisions have not overruled
Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir.
2014) (considering the effect of Alleyne v. United States, 133 S. Ct. 2151 (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,
Madrid’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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