United States v. Edgar Estrada ( 2020 )

Case: 20-10336 Document: 00515638325 Page: 1 Date Filed: 11/13/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
November 13, 2020
No. 20-10336 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Edgar Ivan Lira Estrada,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-342-S-1
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Edgar Ivan Lira Estrada pled guilty to illegal reentry after deportation
in violation of 8 U.S.C. § 1326(a) and (b)(2). He was sentenced to 90 months
of imprisonment. Lira Estrada argues that his sentence should not have been
enhanced under § 1326(b)(2). He contends that § 1326(b)(2) defines a
*
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opinion should not be published and is not precedent except under the limited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: 20-10336 Document: 00515638325 Page: 2 Date Filed: 11/13/2020
No. 20-10336
separate offense, and that because his indictment did not allege a prior
conviction, it charged only a general violation of § 1326 and failed to invoke
the sentencing enhancement in 8 U.S.C. § 1326(b)(2). This, he says, violates
his due process rights. Lira Estrada concedes that his argument is foreclosed,
but he raises it to preserve it for further review.
The Government moves for summary affirmance. As Lira Estrada
concedes, the sole issue raised on appeal is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 235 (1998). 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). 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 alternative motion for an extension of time is DENIED
AS MOOT; and the district court’s judgment is AFFIRMED.
2