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United States v. Mario Pacheco-Zuniga ( 2020 )


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  • Case: 20-50149     Document: 00515550855         Page: 1    Date Filed: 09/02/2020
United States Court of Appeals
for the Fifth Circuit                                 United States Court of Appeals
Fifth Circuit
FILED
September 2, 2020
No. 20-50149
Lyle W. Cayce
Summary Calendar                                Clerk
United States of America,
Plaintiff—Appellee,
versus
Mario Pacheco-Zuniga, also known as Mario Pacheco,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:19-CR-274-1
Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Mario Pacheco-Zuniga appeals his 28-month, below-guidelines range
sentence for illegal entry following removal. See
    8 U.S.C. § 1326
    (a), (b)(2).
He contends that his being sentenced pursuant to § 1326(b)(2) based on a
prior aggravated felony conviction, which increased the statutory maximum
*
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opinion should not be published and is not precedent except under the limited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: 20-50149      Document: 00515550855         Page: 2     Date Filed: 09/02/2020
No. 20-50149
sentence for his illegal reentry offense to 20 years of imprisonment and three
years of supervised release, is unconstitutional because the fact of his prior
conviction was neither alleged in the indictment, nor found by a jury beyond
a reasonable doubt, nor admitted by him following a proper admonishment.
Pacheco-Zuniga 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
possible Supreme Court review because, in his appreciation, there is reason
to believe the Court may revisit Almendarez-Torres. The Government moves
for summary affirmance, urging that Pacheco-Zuniga’s argument is
foreclosed or, alternatively, for an extension of time in which to file a merits
brief.
The parties are correct that Pacheco-Zuniga’s argument is clearly
foreclosed by Almendarez-Torres. See United States v. Pineda-Arrellano,
    492 F.3d 624
    , 625 (5th Cir. 2007); United States v. Wallace,
    759 F.3d 486
    , 497 (5th
Cir. 2014); see generally 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 is DENIED AS MOOT.                       The judgment is
AFFIRMED.
2