Case Information
*1 Case: 20-51043 Document: 00515933560 Page: 1 Date Filed: 07/12/2021
United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED July 12, 2021 No. 20-51043 Lyle W. Cayce Summary Calendar Clerk United States of America,
Plaintiff—Appellee , versus
Daniel Marroquin-Santiago,
Defendant—Appellant . Appeal from the United States District Court for the Western District of Texas No. 2:19-CR-1548-1 Before Smith, Stewart, and Graves, Circuit Judges .
Per Curiam: *
Daniel Marroquin-Santiago appeals the 30-month, within-guidelines sentence and three-year term of supervised release imposed for illegal reentry after removal. He contends that his sentence is unconstitutional because 8 U.S.C. § 1326(b) permits a sentence above the otherwise applicable statu- *2 Case: 20-51043 Document: 00515933560 Page: 2 Date Filed: 07/12/2021
No. 20-51043 tory maximum found in § 1326(a) without requiring that the necessary facts be alleged in an indictment and proven beyond a reasonable doubt.
Marroquin-Santiago requests that we vacate and remand for resen- tencing under § 1326(a), but he concedes that his position is foreclosed by Almendarez-Torres v. United States , 523 U.S. 224, 226 − 27 (1998); he seeks to preserve the issue for further review. The government filed an unopposed motion for summary affirmance in which it agrees that the issue is foreclosed; in the alternative, it seeks an extension to file its brief.
In Almendarez-Torres , id. at 239 − 47, the Court held that, for purposes of a statutory sentencing enhancement, a prior conviction is not a fact that must be alleged in the 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)). Therefore, Marroquin-Santiago’s contentions are foreclosed, and summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis , 406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, the motion for summary affirmance is GRANTED , and the judgment is AFFIRMED . The alternative motion for an extension is DENIED as moot.
2
[*] Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin- ion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.