Case: 20-50005        Document: 00515584635             Page: 1      Date Filed: 09/30/2020




               United States Court of Appeals
                    for the Fifth Circuit                                 United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                        September 30, 2020
                                      No. 20-50005
                                                                            Lyle W. Cayce
                                    Summary Calendar                             Clerk


   United States of America,

                                                                     Plaintiff—Appellee,

                                            versus

   Gabriel Ponce-Ruiz,

                                                                 Defendant—Appellant.


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:19-CR-2450-1


   Before Higginbotham, Jones, and Costa, Circuit Judges.
   Per Curiam:*
           Gabriel Ponce-Ruiz appeals his conviction for illegal reentry into the
   United States. He argues that the enhanced sentencing range in § 1326(b) is
   unconstitutional because a prior conviction is an element of the offense that
   must be alleged in the indictment or found by a jury beyond a reasonable


           *
            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   not be published and is not precedent except under the limited circumstances set forth in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: 20-50005     Document: 00515584635           Page: 2   Date Filed: 09/30/2020




                                    No. 20-50005


   doubt. He concedes that the issue is foreclosed by Almendarez-Torres v.
   United States, 

(1998), but he wishes to preserve it for further
   review. The Government has filed an unopposed motion for summary
   affirmance, agreeing that the issue is foreclosed by Almendarez-Torres.
   Alternately, the Government requests an extension of time to file its brief.
          In 

, the Supreme Court held
   that a prior conviction used to enhance a sentence under § 1326(b) is a
   sentencing factor, not an element of the offense. Neither Apprendi v. New
   Jersey, 

, 476, 490 (2000), nor subsequent Supreme Court cases
   overruled Almendarez-Torres, which remains binding precedent. See United
   States v. Wallace, 

, 497 (5th Cir. 2014); United States v. Garza-
   Lopez, 

, 276 (5th Cir. 2005). Accordingly, Ponce-Ruiz’s sole
   appellate argument is foreclosed by Almendarez-Torres.
          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, 

, 1162 (5th Cir. 1969), the
   Government’s motion for summary affirmance is GRANTED, the
   Government’s alternative motion for an extension of time to file a brief is
   DENIED, and the judgment of the district court is AFFIRMED.




                                         2