United States v. Jesus Gonzalez-Garcia

Case: 18-10636 Document: 00514833432 Page: 1 Date Filed: 02/13/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-10636 FILED
Summary Calendar February 13, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JESUS GONZALEZ-GARCIA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:17-CR-217-1
Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
Jesus Gonzalez-Garcia pleaded guilty to illegal reentry after removal.
He was sentenced to 30 months of imprisonment to be followed by one year of
imprisonment. Gonzalez-Garcia has filed an unopposed motion for the
summary disposition of his appeal.
In his first issue, Gonzalez-Garcia contends that the district court
violated his constitutional rights under the Confrontation Clause and Due
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10636 Document: 00514833432 Page: 2 Date Filed: 02/13/2019
No. 18-10636
Process Clause when, in imposing his sentence, the court relied on information
from the presentence report about his other criminal activity. He concedes
that the issue is foreclosed by this court’s decisions in United States v. Beydoun,
469 F.3d 102, 108 (5th Cir. 2006), and United States v. Navarro, 169 F.3d 228,
236 (5th Cir. 1999). As Gonzalez-Garcia observes, his rights under the
Confrontation Clause do not extend to sentencing proceedings. See Beydoun,
469 F.3d at 108. Moreover, we have previously rejected that the denial of the
right to confront witnesses at a sentencing hearing was a due process violation.
See United States v. Salas, 182 F. App’x 282, 284 & n.7 (5th Cir. 2006).
In his second issue, Gonzalez-Garcia argues that his sentence exceeds
the correct statutory maximum sentence of two years under 8 U.S.C. § 1326(a)
because the statutory enhancement scheme in § 1326(b) is unconstitutional.
He also argues that his guilty plea is involuntary and was accepted in violation
of Federal Rule of Criminal Procedure 11 because he was not admonished that
the fact of a prior conviction is an essential element of the offense that the
Government must prove to a jury beyond a reasonable doubt. Gonzalez-Garcia
concedes, though, that these issues are foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998).
Gonzalez-Garcia has raised these foreclosed issues because he seeks to
preserve them for possible further review. Because summary disposition is
appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th
Cir. 1969), the motion for summary disposition is GRANTED, and the
judgment of the district court is AFFIRMED.
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