Filed: Jul. 12, 2019
Latest Update: Mar. 03, 2020
Summary: Case: 18-50880 Document: 00515032105 Page: 1 Date Filed: 07/12/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-50880 FILED Summary Calendar July 12, 2019 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. LUIS HERNANDEZ VARGAS, Defendant-Appellant Cons. w/No. 18-50881 UNITED STATES OF AMERICA, Plaintiff-Appellee v. LUIS MANUEL HERNANDEZ-VARGAS, Defendant-Appellant Appeals from the United States District Court f
Summary: Case: 18-50880 Document: 00515032105 Page: 1 Date Filed: 07/12/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-50880 FILED Summary Calendar July 12, 2019 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. LUIS HERNANDEZ VARGAS, Defendant-Appellant Cons. w/No. 18-50881 UNITED STATES OF AMERICA, Plaintiff-Appellee v. LUIS MANUEL HERNANDEZ-VARGAS, Defendant-Appellant Appeals from the United States District Court fo..
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Case: 18-50880 Document: 00515032105 Page: 1 Date Filed: 07/12/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-50880 FILED
Summary Calendar July 12, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LUIS HERNANDEZ VARGAS,
Defendant-Appellant
Cons. w/No. 18-50881
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LUIS MANUEL HERNANDEZ-VARGAS,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:18-CR-746-1
USDC No. 2:18-CR-81-1
Case: 18-50880 Document: 00515032105 Page: 2 Date Filed: 07/12/2019
No. 18-50880
c/w No. 18-50881
Before HIGGINBOTHAM, GRAVES, and DUNCAN, Circuit Judges.
PER CURIAM: *
Luis Manuel Hernandez Vargas appeals the 51-month within-guidelines
sentence imposed following his guilty plea conviction for illegal reentry into
the United States. He argues that his sentence is unconstitutional because it
exceeds the two-year statutory maximum sentence of 8 U.S.C. § 1326(a). He
concedes that the issue is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224 (1998), but he wishes to preserve it for further review. The
Government has filed an unopposed motion for summary affirmance, arguing
that the issue is foreclosed under Almendarez-Torres. Alternatively, the
Government requests an extension of time to file its brief.
Summary affirmance is appropriate if “the position of one of the parties
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, 406 F.2d 1158,
1162 (5th Cir. 1969). In
Almendarez-Torres, 523 U.S. at 226-28, 235, 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. We have held that subsequent Supreme
Court decisions did not overrule Almendarez-Torres. 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). Hernandez Vargas’s argument is, as he
concedes, foreclosed. Accordingly, the Government’s motion for summary
affirmance is GRANTED, the Government’s alternative motion for an
* 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.
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Case: 18-50880 Document: 00515032105 Page: 3 Date Filed: 07/12/2019
No. 18-50880
c/w No. 18-50881
extension of time to file a brief is DENIED, and the judgment of the district
court is AFFIRMED.
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