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United States v. Jorge Jamaica-Hernandez ( 2020 )


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  • Case: 20-50182        Document: 00515531070             Page: 1      Date Filed: 08/18/2020
United States Court of Appeals
for the Fifth Circuit                                           United States Court of Appeals
Fifth Circuit
FILED
August 18, 2020
No. 20-50182                                    Lyle W. Cayce
Summary Calendar                                       Clerk
United States of America,
Plaintiff—Appellee,
versus
Jorge Armando Jamaica-Hernandez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:19-CR-1830-1
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Jorge Armando Jamaica-Hernandez 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
*
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not be published and is not precedent except under the limited circumstances set forth in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: 20-50182      Document: 00515531070          Page: 2     Date Filed: 08/18/2020
No. 20-50182
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 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