United States v. Margarito Rodriguez ( 2020 )

Case: 20-50275 Document: 00515556848 Page: 1 Date Filed: 09/09/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
September 9, 2020
No. 20-50275 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Margarito Rodriguez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:19-CR-1174-1
Before Southwick, Duncan, and Oldham, Circuit Judges.
Per Curiam:*
Margarito Rodriguez appeals his above-guidelines sentence of 30
months of imprisonment and three years of supervised release following his
guilty plea conviction for illegal reentry into the United States. Rodriguez
asserts that the enhancement of his sentence pursuant to 8 U.S.C.
*
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opinion should not be published and is not precedent except under the limited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: 20-50275 Document: 00515556848 Page: 2 Date Filed: 09/09/2020
No. 20-50275
§ 1326(b)(2), which increased the maximum term of imprisonment to 20
years and the maximum term of supervised release to three years, is
unconstitutional because the fact of a prior conviction is treated as a
sentencing factor rather than as an element of the offense that must be alleged
in the indictment and proved to a jury beyond a reasonable doubt.
As Rodriguez concedes, this issue is foreclosed by the Supreme
Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 239-47
(1998). 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). Thus, summary
affirmance is appropriate. See 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