     Case: 19-50330      Document: 00515189043         Page: 1    Date Filed: 11/06/2019




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

                                                                            FILED
                                    No. 19-50330                    November 6, 2019
                                  Summary Calendar
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RUDY ORLANDO CABRERA, also known as Rudy Cabrera,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:18-CR-1631-1


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Rudy Orlando Cabrera appeals his sentence to 57 months of
imprisonment and three years of supervised release following his guilty-plea
conviction for illegal reentry.        He contends that the enhancement of his
sentence pursuant to 8 U.S.C. § 1326(b)(2) is unconstitutional because the fact
of a prior conviction must be charged and proved to a jury beyond a reasonable
doubt.      While Cabrera acknowledges this argument is foreclosed by


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50330    Document: 00515189043    Page: 2   Date Filed: 11/06/2019


                                No. 19-50330

Almendarez-Torres v. United States, 523 U.S. 224 (1998), he nevertheless seeks
to preserve it for possible Supreme Court review.
      The Supreme Court held in Almendarez-Torres that for purposes of a
statutory sentencing enhancement, a prior conviction is not a fact that must
be alleged in an indictment or found beyond a reasonable doubt by a jury.
523 U.S. at 239-47.   This court has held that subsequent Supreme Court
decisions such as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi
v. New Jersey, 530 U.S. 466 (2000), did not overrule Almendarez-Torres.
See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States
v. Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007). Thus, Cabrera is
correct that his argument is foreclosed, and summary affirmance is
appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th
Cir. 1969).
      The Government’s motion for summary affirmance is accordingly
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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