     Case: 19-10496      Document: 00515224930         Page: 1    Date Filed: 12/05/2019




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

                                    No. 19-10496
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                      December 5, 2019
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

VICENTE MENDOZA-GUTIERREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-255-1


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Vicente Mendoza-Gutierrez appeals the sentence imposed following his
guilty plea conviction for illegal reentry after deportation in violation of
8 U.S.C. § 1326(a) and (b)(1). He argues that the enhancement of his statutory
sentencing range based on a prior felony conviction pursuant to § 1326(b)(1),
which increased his statutory maximum sentence to 10 years of imprisonment
and three years of supervised release, is unconstitutional because of the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10496    Document: 00515224930     Page: 2   Date Filed: 12/05/2019


                                 No. 19-10496

treatment of the provision as a sentencing factor rather than as an element of
a separate offense that must be alleged in the indictment and proved to a jury
beyond a reasonable doubt.      He concedes that this issue 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 decisions indicate that the Supreme Court may reconsider its
holding in Almendarez-Torres.
      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. Rojas-Luna, 522 F.3d 502, 505 (5th
Cir. 2008) (considering the effect of Apprendi v. New Jersey, 530 U.S. 466
(2000)). Thus, Mendoza-Gutierrez’s argument is foreclosed.
      Accordingly, the Government’s motion for summary affirmance is
GRANTED, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th
Cir. 1969), 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
