United States v. Jorge Lopez-Fuentes

Case: 17-11124 Document: 00514399569 Page: 1 Date Filed: 03/23/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-11124 FILED
Summary Calendar March 23, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JORGE ALONSO LOPEZ-FUENTES,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:17-CR-35-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Jorge Alonso Lopez-Fuentes appeals the 36-month, above-guidelines
sentence and three-year term of supervised release that he received after
pleading guilty to illegally reentering the country after he had been deported.
For the first time on appeal, he argues that before the sentence enhancements
described in 8 U.S.C. § 1326(b) could be applied to him, the Government was
required to charge in the indictment and either prove to a jury or secure his
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-11124 Document: 00514399569 Page: 2 Date Filed: 03/23/2018
No. 17-11124
admission as part of a guilty plea that he had a previous conviction of a felony
or an aggravated felony. He concedes that the issue is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998); however, he seeks to
preserve it for future review.
In Almendarez-Torres, 523 U.S. at 239-47, the Supreme Court held that
for purposes of a statutory sentencing enhancement, a prior conviction is not a
fact that must be alleged in an indictment or found by a jury beyond a
reasonable doubt. We have held that subsequent Supreme Court decisions did
not overrule Almendarez-Torres. See United States v. Wallace, 759 F.3d 486,
497 (5th Cir. 2014) (considering the effect of Alleyne v. United States, 570 U.S.
99 (2013)); United States v. Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir.
2007) (considering the effect of Apprendi v. New Jersey, 530 U.S. 466 (2000)).
Thus, Lopez-Fuentes is correct that his argument is foreclosed.
Accordingly, the motion for summary disposition is GRANTED, and the
district court’s judgment is AFFIRMED.
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