United States v. Chacon-Gonzalez ( 2023 )

Case: 23-10531 Document: 00516982109 Page: 1 Date Filed: 11/28/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10531
Summary Calendar FILED
____________ November 28, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Hector Daniel Chacon-Gonzalez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:23-CR-14-1
______________________________
Before Jones, Southwick, and Ho, Circuit Judges.
Per Curiam: *
Hector Daniel Chacon-Gonzalez appeals the sentence imposed
following his guilty plea conviction for illegal reentry after deportation in
violation of 8 U.S.C. § 1326. Renewing an argument made before the district
court, Chacon-Gonzales challenges the application of the enhanced penalty
_____________________
*
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opinion should not be published and is not precedent except under the limited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: 23-10531 Document: 00516982109 Page: 2 Date Filed: 11/28/2023
No. 23-10531
range in § 1326(b) as unconstitutional because it permits a defendant to be
sentenced above the statutory maximum of § 1326(a) based on the fact of a
prior conviction that was not alleged in the indictment or found by a jury
beyond a reasonable doubt. As he correctly concedes, this issue is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See United States
v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). He raises the issue to preserve
it for Supreme Court review. The Government has filed an unopposed
motion for summary affirmance agreeing that the issue is foreclosed and, in
the alternative, requesting an extension of time to file a brief.
Because summary affirmance is appropriate, see Groendyke Transp.,
Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the Government’s motion
is GRANTED, and the district court’s judgment is AFFIRMED. The
Government’s alternative motion for an extension of time to file a brief is
DENIED AS MOOT.
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