United States v. Hernandez-Rodriguez ( 2021 )

Case: 20-50701 Document: 00515809759 Page: 1 Date Filed: 04/06/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 6, 2021
No. 20-50701 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Francisco Hernandez-Rodriguez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:20-CR-129-1
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Francisco Hernandez-Rodriguez appeals the within-guidelines
sentence of 37 months of imprisonment and three years of supervised release
imposed following his guilty plea conviction for illegal reentry after removal
from the United States. He argues that 8 U.S.C. § 1326(b)(1) is
*
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opinion should not be published and is not precedent except under the limited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: 20-50701 Document: 00515809759 Page: 2 Date Filed: 04/06/2021
No. 20-50701
unconstitutional because it increases the statutory maximum sentence based
on the fact of a prior felony conviction 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), and
he seeks to preserve the issue for further review. The Government filed an
unopposed motion for summary affirmance agreeing that the issue is
foreclosed and, in the alternative, a motion for an extension of time to file a
brief.
As the Government argues, and Hernandez-Rodriguez agrees, the
sole issue raised on appeal 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). Because the issue is
foreclosed, summary affirmance is appropriate. See Groendyke Transp., Inc.
v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, summary affirmance is GRANTED, and the judgment
of the district court is AFFIRMED. The Government’s alternative motion
for an extension of time to file a brief is DENIED.
2