     Case: 18-50880   Document: 00515032105   Page: 1   Date Filed: 07/12/2019




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


                              No. 18-50880                       FILED
                            Summary Calendar                  July 12, 2019
                                                              Lyle W. Cayce
                                                                   Clerk
UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

LUIS HERNANDEZ VARGAS,

                                         Defendant-Appellant


Cons. w/No. 18-50881

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

LUIS MANUEL HERNANDEZ-VARGAS,

                                         Defendant-Appellant


                Appeals from the United States District Court
                      for the Western District of Texas
                          USDC No. 2:18-CR-746-1
                           USDC No. 2:18-CR-81-1
     Case: 18-50880      Document: 00515032105         Page: 2    Date Filed: 07/12/2019


                                     No. 18-50880
                                   c/w No. 18-50881

Before HIGGINBOTHAM, GRAVES, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Luis Manuel Hernandez Vargas appeals the 51-month within-guidelines
sentence imposed following his guilty plea conviction for illegal reentry into
the United States. He argues that his sentence is unconstitutional because it
exceeds the two-year statutory maximum sentence of 8 U.S.C. § 1326(a). He
concedes that the issue is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224 (1998), but he wishes to preserve it for further review. The
Government has filed an unopposed motion for summary affirmance, arguing
that the issue is foreclosed under Almendarez-Torres.                 Alternatively, the
Government requests an extension of time to file its brief.
       Summary affirmance is appropriate if “the position of one of the parties
is clearly right as a matter of law so that there can be no substantial question
as to the outcome of the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969). In Almendarez-Torres, 523 U.S. at 226-28, 235, 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. We have held that subsequent Supreme
Court decisions 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). Hernandez Vargas’s argument is, as he
concedes, foreclosed.      Accordingly, the Government’s motion for summary
affirmance is GRANTED, the Government’s alternative motion for an




       * 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.



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    Case: 18-50880   Document: 00515032105    Page: 3   Date Filed: 07/12/2019


                                No. 18-50880
                              c/w No. 18-50881

extension of time to file a brief is DENIED, and the judgment of the district
court is AFFIRMED.




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