United States v. Esteban Aguilera-Alvarez

Case: 18-50285 Document: 00514791464 Page: 1 Date Filed: 01/11/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-50285 FILED
Summary Calendar January 11, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ESTEBAN AGUILERA-ALVAREZ, also known as Esteban Perez-Alvarez,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:17-CR-2214-1
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Esteban Aguilera-Alvarez appeals the 30-month, within-guidelines
prison term imposed following his guilty plea conviction for illegally reentering
the United States after removal. Raising one issue, Aguilera-Alvarez argues
that his indictment did not allege a conviction occurring before his removal and
that, for this reason, his prison term, imposed under 8 U.S.C. § 1326(b), was in
excess of the statutory maximum permitted under § 1326(a) and violated 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50285 Document: 00514791464 Page: 2 Date Filed: 01/11/2019
No. 18-50285
due process rights. The Government has filed an unopposed motion for
summary affirmance and, alternatively, seeks an extension of time to file its
brief.
As the Government argues and as Aguilera-Alvarez concedes, the only
issue raised on appeal is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224 (1998). 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, the Government’s motion for summary affirmance is
GRANTED, and the judgment is AFFIRMED. The Government’s alternative
motion for an extension of time to file its brief is DENIED.
2