United States v. Carlos Santos-Guerrero ( 2019 )

Case: 19-50437 Document: 00515249917 Page: 1 Date Filed: 12/27/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-50437 FILED
Summary Calendar December 27, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CARLOS ODILIO SANTOS-GUERRERO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:18-CR-1755-1
Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM: *
Carlos Odilio Santos-Guerrero appeals his guidelines sentence of 14
months of imprisonment and three years of supervised release imposed
following his guilty plea conviction for illegal reentry. He argues that the
enhancement of his sentence pursuant to 8 U.S.C. § 1326(b)(2), which
increased the maximum term of imprisonment to 20 years, is unconstitutional
because of the treatment of the provision as a sentencing factor rather than as
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50437 Document: 00515249917 Page: 2 Date Filed: 12/27/2019
No. 19-50437
an element of the offense that must be alleged in the indictment and proved to
a jury beyond a reasonable doubt. He concedes that this issue 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 decisions indicate that the Supreme Court may reconsider its
holding in Almendarez-Torres.
In Almendarez-Torres, 523 U.S. at 239-47, 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. 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. Rojas-Luna, 522 F.3d 502, 505-06
(5th Cir. 2008) (considering the effect of Apprendi v. New Jersey, 530 U.S. 466
(2000)). Thus, Santos-Guerrero’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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