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United States v. Manuel Espinoza-Infante ( 2020 )


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  • Case: 20-10601      Document: 00515608936           Page: 1     Date Filed: 10/20/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 20-10601                    October 20, 2020
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Manuel Espinoza-Infante,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-8-1
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Manuel Espinoza-Infante appeals the 12-month sentence imposed
after his guilty plea conviction for illegal reentry after deportation. He asserts
that his sentence was improperly imposed pursuant to
    8 U.S.C. § 1326
    (b)(1).
Espinoza-Infante argues that the enhanced recidivism penalties of § 1326(b)
*
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opinion should not be published and is not precedent except under the limited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: 20-10601      Document: 00515608936           Page: 2    Date Filed: 10/20/2020
No. 20-10601
are elements of the offense that must be alleged in the indictment and proven
to a jury beyond a reasonable doubt because they increase the maximum term
of imprisonment. He correctly acknowledges that his claim is foreclosed by
Almendarez-Torres v. United States,
    523 U.S. 224
     (1998), but he presents 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, in the alternative, seeks an extension of time to file its brief.
Because the sole issue raised on appeal is foreclosed, summary affirmance is
proper. 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 an appellate brief is DENIED, and the judgment of the district court
is AFFIRMED.
2