     Case: 19-50437      Document: 00515249917         Page: 1    Date Filed: 12/27/2019




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

                                    No. 19-50437                          FILED
                                  Summary Calendar                 December 27, 2019
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CARLOS ODILIO SANTOS-GUERRERO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:18-CR-1755-1


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Carlos Odilio Santos-Guerrero appeals his guidelines sentence of 14
months of imprisonment and three years of supervised release imposed
following his guilty plea conviction for illegal reentry. He argues that the
enhancement of his sentence pursuant to 8 U.S.C. § 1326(b)(2), which
increased the maximum term of imprisonment to 20 years, is unconstitutional
because of the treatment of the provision as a sentencing factor rather than as


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50437    Document: 00515249917    Page: 2   Date Filed: 12/27/2019


                                No. 19-50437

an element of the 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, 505-06
(5th Cir. 2008) (considering the effect of Apprendi v. New Jersey, 530 U.S. 466
(2000)). Thus, Santos-Guerrero’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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