     Case: 17-50595      Document: 00514378315         Page: 1    Date Filed: 03/08/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals

                                    No. 17-50595
                                                                                Fifth Circuit


                                  Summary Calendar                            FILED
                                                                          March 8, 2018
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk

                                                 Plaintiff-Appellee

v.

JOSE MALDONADO-ZELAYA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:15-CR-957-1


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Jose Maldonado-Zelaya appeals the 60-month above-guidelines sentence
and 3-year term of supervised release imposed following his guilty plea
conviction for illegal reentry. He argues that his sentence violates due process
because it exceeds the statutory maximum sentence of 8 U.S.C. § 1326(a). He
concedes that the issue whether his eligibility for a sentencing enhancement
under § 1326(b) must be alleged in the indictment and proved to a jury 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50595    Document: 00514378315    Page: 2   Date Filed: 03/08/2018


                                No. 17-50595

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, Maldonado-Zelaya’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.




                                      2
