United States v. Raul Mendoza-Cepeda ( 2019 )

Case: 19-50504 Document: 00515234038 Page: 1 Date Filed: 12/12/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-50504 December 12, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RAUL MENDOZA-CEPEDA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:18-CR-1509-1
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
Raul Mendoza-Cepeda appeals the 27-month guidelines sentence and
three-year term of supervised release imposed following his guilty plea
conviction for being found unlawfully in the United States after previous
removal. He argues that his sentence is unconstitutional because it exceeds
the maximum sentence of 18 U.S.C. § 1326(a) charged in the indictment.
However, he correctly concedes that the issue whether his eligibility for a
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50504 Document: 00515234038 Page: 2 Date Filed: 12/12/2019
No. 19-50504
sentencing enhancement under § 1326(b) must be alleged in the indictment
and proved to a jury is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224 (1998). 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).
Thus, summary affirmance is appropriate. Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969).
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.
2