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United States v. Saragoza-Botello ( 2021 )


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  • Case: 20-50786      Document: 00515755324           Page: 1     Date Filed: 02/24/2021
United States Court of Appeals
for the Fifth Circuit                                 United States Court of Appeals
Fifth Circuit
FILED
February 24, 2021
No. 20-50786
Summary Calendar                          Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Carlos Amador Saragoza-Botello,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-188-1
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Carlos Amador Saragoza-Botello appeals his sentence of 46 months in
prison and three years of supervised release, which the district court imposed
following his guilty plea conviction for illegal reentry, in violation of
    8 U.S.C. § 1326
    . Saragoza-Botello contends that the recidivism enhancement under
*
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opinion should not be published and is not precedent except under the limited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: 20-50786      Document: 00515755324          Page: 2    Date Filed: 02/24/2021
No. 20-50786
§ 1326(b) is unconstitutional because it allows a sentence above the otherwise
applicable statutory maximum of two years of imprisonment and one year of
supervised release, see § 1326(a); 18 U.S.C.§§ 3559(a)(5), 3583(b)(3), based
on facts that are neither alleged in the indictment nor found by a jury beyond
a reasonable doubt. He 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 further review. The Government moves, unopposed, for summary
affirmance, asserting that Saragoza-Botello’s argument is foreclosed.
The parties are correct that Saragoza-Botello’s assertion is foreclosed
by Almendarez-Torres. 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). Accordingly, the motion for summary affirmance is
GRANTED, see Groendyke Transp., Inc. v. Davis,
    406 F.2d 1158
    , 1162 (5th
Cir. 1969), 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