United States v. Trejo-Ramos ( 2021 )

Case: 20-11059 Document: 00515905845 Page: 1 Date Filed: 06/18/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-11059 June 18, 2021
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Gustavo Trejo-Ramos,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-97-1
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Gustavo Trejo-Ramos appeals the 33-month, above-guidelines
sentence imposed following his guilty plea conviction for illegal reentry after
removal from the United States. He contends that his sentence is
unconstitutional because his indictment alleged only those facts sufficient for
*
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opinion should not be published and is not precedent except under the limited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: 20-11059 Document: 00515905845 Page: 2 Date Filed: 06/18/2021
No. 20-11059
a conviction under 8 U.S.C. § 1326(a) and did not include any allegations of
a prior conviction necessary for a sentence enhancement under § 1326(b)(2).
He concedes that this argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 226-27 (1998), but seeks to preserve the issue for further
review. The Government has filed an unopposed motion for summary
affirmance, agreeing that the issue is foreclosed, and in the alternative, a
motion for an extension of time to file a brief.
As the Government argues, and Trejo-Ramos concedes, the sole issue
raised on appeal is foreclosed by 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). Because the issue is foreclosed,
summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406
F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED. The
Government’s alternative motion for an extension of time to file a brief is
DENIED.
2