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United States v. Julian Hernandez-Nevarez ( 2020 )


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  •      Case: 20-50074      Document: 00515519287         Page: 1    Date Filed: 08/07/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 20-50074
FILED
August 7, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JULIAN HERNANDEZ-NEVAREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:19-CR-2969-1
Before HAYNES, WILLETT and HO, Circuit Judges.
PER CURIAM: *
Julian Hernandez-Nevarez appeals the within-guidelines, 37-month
sentence imposed following his guilty plea conviction for illegally reentering
the United States after removal, in violation of
    8 U.S.C. § 1326
    . He argues
that his sentence was imposed under an unconstitutional sentencing provision
because § 1326(b) permits a defendant’s sentence to be enhanced even if the
fact of a prior conviction is not alleged in the indictment and proved beyond a
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 20-50074     Document: 00515519287      Page: 2   Date Filed: 08/07/2020
No. 20-50074
reasonable doubt.     He correctly concedes that his claim is foreclosed by
Almendarez-Torres v. United States,
    523 U.S. 224
     (1998), but he raises the
issue to preserve it for further possible review. 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).
The Government has filed an unopposed motion for summary affirmance
and, alternatively, seeks an extension of time to file its brief. Because the issue
is foreclosed, 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