United States v. Rivas-Garcia ( 2021 )

Case: 21-50464 Document: 00516102515 Page: 1 Date Filed: 11/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 22, 2021
No. 21-50464
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Elmer Josue Rivas-Garcia,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:21-CR-70-1
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Elmer Josue Rivas-Garcia appeals his sentence of 46 months of
imprisonment and three years of supervised release, which the district court
imposed following his guilty plea conviction for illegal reentry. He argues
that the recidivism enhancement under 8 U.S.C. § 1326(b) is
*
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opinion should not be published and is not precedent except under the limited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: 21-50464 Document: 00516102515 Page: 2 Date Filed: 11/22/2021
No. 21-50464
unconstitutional because it allows a sentence above the otherwise applicable
statutory maximum based on facts that are neither alleged in the indictment
nor found by a jury beyond a reasonable doubt. He concedes that the issue is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
seeks to preserve the issue for further review. The Government moves for
summary affirmance, asserting that Rivas-Garcia’s argument is foreclosed.
The parties are correct that Rivas-Garcia’s assertion is foreclosed by
Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir.
2014). Accordingly, the Government’s motion for summary affirmance is
GRANTED, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th
Cir. 1969), 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