Case: 20-50212   Document: 00515575444   Page: 1   Date Filed: 09/23/2020




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

                                                                  FILED
                                                          September 23, 2020
                            No. 20-50212
                          Summary Calendar                   Lyle W. Cayce
                                                                  Clerk

   United States of America,

                                                   Plaintiff—Appellee,

                                versus

   Samuel Zubia-Olivas,

                                               Defendant—Appellant,

                        consolidated with
                          _____________

                            No. 20-50228
                          _____________

   United States of America,

                                                   Plaintiff—Appellee,

                                versus

   Samuel Zubia-Olivas, also known as Juan Zubias-Sanchez,
   also known as Samuel Olivas Zubia, also known as Samuel
   Olivas-Zubia, also known as Samuel Zubia Olivas, also known as
   Samuel Olivias Zubias,

                                               Defendant—Appellant.
Case: 20-50212      Document: 00515575444         Page: 2     Date Filed: 09/23/2020

                                    No. 20-50212
                                  c/w No. 20-50228


                  Appeals from the United States District Court
                       for the Western District of Texas
                            USDC No. 7:16-CR-90-1
                            USDC No. 4:19-CR-747-1


   Before Haynes, Willett, and Ho, Circuit Judges.
   Per Curiam:*
          Samuel Zubia-Olivas appeals his Guidelines sentence of 96 months of
   imprisonment and 3 years of supervised release following his guilty plea
   conviction for illegal reentry. He argues that the enhancement of his sentence
   under 8 U.S.C. § 1326(b)(1), which increases the maximum term of
   imprisonment to ten years, is unconstitutional because the statute treats a
   prior conviction as a sentencing factor, rather than as an element of a separate
   offense that must be listed in the indictment and proved to a jury beyond a
   reasonable doubt. He concedes that this issue is foreclosed by Almendarez-
   Torres v. United States, 

(1998). However, he seeks to preserve
   the issue for possible Supreme Court review because, he argues, subsequent
   decisions indicate that the Supreme Court may reconsider its holding in
   Almendarez-Torres.
          In 

–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. This Court has held that subsequent Supreme Court
   decisions did not overrule Almendarez-Torres. See United States v. Wallace,
   

, 497 (5th Cir. 2014) (concluding that Alleyne v. United States,
   

(2013) did not disturb Almendarez-Torres); United States v. Rojas-


          *
            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.




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Case: 20-50212     Document: 00515575444        Page: 3    Date Filed: 09/23/2020




                                   No. 20-50212
                                 c/w No. 20-50228

   Luna, 

, 505 (5th Cir. 2008) (concluding Apprendi v. New Jersey,
   

(2000), did not affect the treatment of prior convictions under
   Almendarez-Torres). Thus, Zubia-Olivas’s argument is foreclosed.
         Accordingly, the judgment of the district court is AFFIRMED, the
   Government’s motion for summary affirmance is GRANTED, and the
   Government’s alternative motion for an extension of time to file a brief is
   DENIED AS MOOT.




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