United States v. Rocky Riojas-Ordaz ( 2019 )

Case: 17-11451 Document: 00514870643 Page: 1 Date Filed: 03/13/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-11451 March 13, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROCKY RIOJAS-ORDAZ, also known as Joaquin Riojas-Ordaz, also known as
Rocky Riojas-Luna,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-122-1
Before BENAVIDES, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM: *
Rocky Riojas-Ordaz appeals the 48-month, above-Guidelines sentence he
received after pleading guilty to his fourth conviction for illegal reentry. For
the first time, Riojas-Ordaz challenges his conviction under 8 U.S.C.
§ 1326(b)(2), which sets the maximum penalty at 20 years of imprisonment for
a defendant “whose removal was subsequent to a conviction for commission of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-11451 Document: 00514870643 Page: 2 Date Filed: 03/13/2019
No. 17-11451
an aggravated felony.” He also argues that his sentence violates Due Process
because his prior convictions were not alleged in the indictment. We review
these unpreserved issues for plain error. See Puckett v. United States, 556 U.S.
129, 135 (2009); United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th
Cir. 2009). We find none.
Riojas-Ordaz’s three prior convictions under § 1326(b)(2) are “aggravated
felonies.” See United States v. Gamboa-Garcia, 620 F.3d 546, 548 (5th Cir.
2010) (citing 8 U.S.C. § 1101(a)(43)(O)). The district court was entitled to rely
on these convictions as aggravated felonies, without revisiting whether Riojas-
Ordaz’s underlying conviction qualified under 8 U.S.C. § 1101(a)(43)(F) or (G).
See United States v. Piedra-Morales, 843 F.3d 623, 624-25 (5th Cir. 2016)
(citing Gamboa-Garcia, 620 F.3d at 549).
Riojas-Ordaz correctly concedes his second issue is foreclosed by
Almendarez-Torres v. United States, which held that a prior conviction is not a
fact that must be alleged in an indictment when applying a statutory
sentencing enhancement. 523 U.S. 224, 235, 239 (1998); see also 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).
Having found no error, plain or otherwise, the judgment of the district
court is AFFIRMED.
2