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United States v. Jose Pulido-Mendez ( 2020 )


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  •      Case: 19-50833   Document: 00515375854   Page: 1   Date Filed: 04/08/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-50833
FILED
April 8, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE ARNULFO PULIDO-MENDEZ,
Defendant-Appellant
__________________________________________________________________
Consolidated with No. 19-50834
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE ARNULFO PULIDO-MENDEZ, also known as Jose Arnulfo P M, also
known as Jose Arnulfo Pulido, also known as Jose Pulido-Mendez, also known
as Jose Mendez-Pulido, also known as Jose Arnulfo Mendez-Pulido,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:18-CR-242-1
USDC No. 4:19-CR-221-1
Case: 19-50833      Document: 00515375854         Page: 2    Date Filed: 04/08/2020
No. 19-50833
c/w No. 19-50834
Before WIENER, COSTA, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Jose Arnulfo Pulido-Mendez appeals from a judgment revoking his
previously-imposed supervised release and a judgment of conviction on his
guilty plea to illegal reentry, in violation of
    8 U.S.C. § 1326
    . He argues that
the enhancement of his sentence based on his prior conviction pursuant to
§ 1326(b)(1), which increased the statutory maximum term of imprisonment to
10 years and the statutory maximum term of supervised release to three years
for his new illegal reentry offense, is unconstitutional because his prior
conviction is treated as a sentencing factor rather than an element of the
offense that must be alleged in the indictment and 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, urging
that Pulido-Mendez’s argument is foreclosed.
The parties are correct that Pulido-Mendez’s argument is foreclosed by
Almendarez-Torres. See United States v. Wallace,
    759 F.3d 486
    , 497 (5th Cir.
2014); United States v. Rojas-Luna,
    522 F.3d 502
    , 505-06 (5th Cir. 2008).
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 judgments of the district court are AFFIRMED.
* 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.
2