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United States v. Omero Nino-Guerrero ( 2020 )


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  •      Case: 19-10994      Document: 00515398684         Page: 1    Date Filed: 04/29/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 19-10994
Fifth Circuit
FILED
Summary Calendar                        April 29, 2020
Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk
Plaintiff-Appellee
v.
OMERO NINO-GUERRERO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:19-CR-41-1
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
Omero Nino-Guerrero appeals the 21-month term of imprisonment and
three-year term of supervised release imposed following his guilty plea
conviction for illegal reentry after deportation. See 8 U.S.C. § 1326(a), (b)(1).
According to Nino-Guerrero, § 1326(b)’s enhanced penalty provisions for prior
convictions are unconstitutional to the extent prior convictions are treated as
sentencing factors rather than as elements of the offense that must be alleged
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10994     Document: 00515398684      Page: 2   Date Filed: 04/29/2020
No. 19-10994
in the indictment and proved to a jury beyond a reasonable doubt. Nino-
Guerrero correctly concedes that his argument 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