United States v. Lopez-Hernandez ( 2021 )

Case: 20-50742 Document: 00515694551 Page: 1 Date Filed: 01/05/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 20-50742
FILED
January 5, 2021
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jesus Lopez-Hernandez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-148-1
Before Jolly, Elrod, and Costa, Circuit Judges.
Per Curiam:*
Jesus Lopez-Hernandez appeals his sentence of 16 months of
imprisonment and three years of supervised release, which the district court
imposed following his guilty plea conviction for illegal reentry, in violation of
8 U.S.C. § 1326. Lopez-Hernandez contends that § 1326(b)’s recidivism
*
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opinion should not be published and is not precedent except under the limited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: 20-50742 Document: 00515694551 Page: 2 Date Filed: 01/05/2021
No. 20-50742
enhancement is unconstitutional because it allows a sentence above the
otherwise applicable statutory maximum of two years of imprisonment and
one year of supervised release, see § 1326(a); 18 U.S.C. §§ 3559(a)(5),
3583(b)(3), 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, unopposed,
for summary affirmance, asserting that Lopez-Hernandez’s argument is
foreclosed.
The parties are correct that Lopez-Hernandez’s assertion is
foreclosed by Almendarez-Torres. 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). Accordingly, the 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