United States v. Santos Membreno-Arevalo , 712 F. App'x 463 ( 2018 )

Case: 17-50296 Document: 00514353275 Page: 1 Date Filed: 02/20/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-50296
Fifth Circuit
FILED
Summary Calendar February 20, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff–Appellee
v.
SANTOS LORENZO MEMBRENO-AREVALO,
Defendant–Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:16-CR-332-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Santos Lorenzo Membreno-Arevalo appeals the 71-month within-
guidelines sentence and three-year term of supervised release imposed
following his guilty plea conviction for illegal reentry. He argues that his
sentence violates due process because it exceeds the statutory maximum
sentence of 8 U.S.C. § 1326(a). He concedes that the issue whether his
eligibility for a sentencing enhancement under § 1326(b) must be alleged in the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50296 Document: 00514353275 Page: 2 Date Filed: 02/20/2018
No. 17-50296
indictment and proved to a jury 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 Supreme Court
decisions indicate that the Court may reconsider this issue.
In Almendarez-Torres, 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. 523
U.S. at 239-47. 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)). Thus, Membreno-Arevalo’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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