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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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, 

(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 

, 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) (considering the effect of Alleyne v. United
States, 

(2013)); United States v. Pineda-Arrellano, 

,
625-26 (5th Cir. 2007) (considering the effect of Apprendi v. New Jersey,

(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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