Filed: Dec. 19, 2018
Latest Update: Mar. 03, 2020
Summary: Case: 18-10625 Document: 00514767843 Page: 1 Date Filed: 12/19/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-10625 FILED Summary Calendar December 19, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ROBERTO TIRADO-GUERRERO, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:17-CR-247-1 Before DENNIS, CLEMENT, and OWEN, Circuit Judges. PER CUR
Summary: Case: 18-10625 Document: 00514767843 Page: 1 Date Filed: 12/19/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-10625 FILED Summary Calendar December 19, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ROBERTO TIRADO-GUERRERO, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:17-CR-247-1 Before DENNIS, CLEMENT, and OWEN, Circuit Judges. PER CURI..
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Case: 18-10625 Document: 00514767843 Page: 1 Date Filed: 12/19/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-10625 FILED
Summary Calendar December 19, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROBERTO TIRADO-GUERRERO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:17-CR-247-1
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Roberto Tirado-Guerrero appeals the three-year term of supervised
release imposed following his guilty plea conviction for illegal reentry after
removal. He argues that his sentence violates due process because it exceeds
the statutory maximum sentence authorized by 8 U.S.C. § 1326(a). He
concedes that the issue whether his eligibility for a sentencing enhancement
under § 1326(b) must be alleged in the indictment and proven to a jury is
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10625 Document: 00514767843 Page: 2 Date Filed: 12/19/2018
No. 18-10625
foreclosed by Almendarez-Torres v. United States,
523 U.S. 224 (1998).
However, he seeks to preserve the issue for possible Supreme Court review
because, he argues, subsequent Supreme Court decisions indicate that the
Court may reconsider this issue.
In
Almendarez-Torres, 523 U.S. at 226-28, 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,
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)). Tirado-Guerrero’s argument is foreclosed.
Accordingly, 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.
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