United States v. Pena-Talamantes ( 2023 )

Case: 23-10325 Document: 00516918775 Page: 1 Date Filed: 10/03/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10325
Summary Calendar FILED
____________ October 3, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Pedro Pena-Talamantes,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:22-CR-326-1
______________________________
Before Dennis, Engelhardt, and Wilson, Circuit Judges.
Per Curiam: *
Pedro Pena-Talamantes appeals his within-guidelines range sentence
for illegal entry following deportation. See 8 U.S.C. § 1326(a) & (b)(1). The
district court sentenced Pena-Talamantes to 18 months of imprisonment
followed by three years of supervised release. Pena-Talamantes contends
that his supervised release term violates Apprendi v. New Jersey, 530 U.S. 466_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-10325 Document: 00516918775 Page: 2 Date Filed: 10/03/2023
No. 23-10325
(2000), because it is greater than the one-year term permitted under
§ 1326(a) and is based on a fact—his prior conviction for a felony—that was
neither pleaded in the indictment nor found by a jury beyond a reasonable
doubt or admitted by him in pleading guilty. Pena-Talamantes concedes that
this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224(1998), and that he seeks to preserve it for possible Supreme Court review.
The Government moves for summary affirmance, urging that Pena-
Talamantes’s argument is foreclosed, or, alternatively, for an extension of
time in which to file a merits brief.
The parties are correct that Pena-Talamantes’s argument is
foreclosed by Almendarez-Torres. See United States v. Pervis, 937 F.3d 546,
553-54 (5th Cir. 2019); United States v. Wallace, 759 F.3d 486, 497 (5th Cir.
2014). Because the Government’s position “is clearly right as a matter of
law so that there can be no substantial question as to the outcome of the
case,” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969),
summary affirmance is proper. Accordingly, the Government’s motion for
summary affirmance is GRANTED. The Government’s alternative motion
for an extension of time is DENIED. The judgment is AFFIRMED.
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