United States v. Sanchez-Barrera ( 2021 )

Case: 21-50135 Document: 00515887887 Page: 1 Date Filed: 06/04/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
June 4, 2021
No. 21-50135 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Omar Sanchez-Barrera,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-384-1
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Omar Sanchez-Barrera appeals the within-guidelines sentence of 37
months of imprisonment and three years of supervised release imposed
following his guilty plea conviction for illegal reentry after deportation from
the United States. He argues that the enhanced sentencing range in 8 U.S.C.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-50135 Document: 00515887887 Page: 2 Date Filed: 06/04/2021
No. 21-50135
§ 1326(b) is unconstitutional because a prior conviction is an element of the
offense that must be alleged in the indictment or found by a jury beyond a
reasonable doubt. He concedes that the issue is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998), but seeks to preserve it for
further review. The Government has filed an unopposed motion for
summary affirmance, agreeing that the issue is foreclosed by Almendarez-
Torres. Alternatively, the Government requests an extension of time to file
its brief.
In Almendarez-Torres, 523 U.S. at 226-27, the Supreme Court held
that a prior conviction used to enhance a sentence under § 1326(b) is a
sentencing factor, not an element of the offense. Neither Apprendi v. New
Jersey, 530 U.S. 466, 476, 490 (2000), nor subsequent Supreme Court cases
overruled Almendarez-Torres, which remains binding precedent. See United
States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Garza-
Lopez, 410 F.3d 268, 276 (5th Cir. 2005). Accordingly, Sanchez-Barrera’s
sole appellate argument is foreclosed by Almendarez-Torres.
Because the Government’s position “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), 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.
2