Case: 20-50275     Document: 00515556848         Page: 1     Date Filed: 09/09/2020




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

                                                                             FILED
                                                                      September 9, 2020
                                  No. 20-50275                          Lyle W. Cayce
                                Summary Calendar                             Clerk



   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   Margarito Rodriguez,

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                       for the Western District of Texas
                           USDC No. 2:19-CR-1174-1


   Before Southwick, Duncan, and Oldham, Circuit Judges.
   Per Curiam:*
          Margarito Rodriguez appeals his above-guidelines sentence of 30
   months of imprisonment and three years of supervised release following his
   guilty plea conviction for illegal reentry into the United States. Rodriguez
   asserts that the enhancement of his sentence pursuant to 8 U.S.C.


          *
            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   opinion should not be published and is not precedent except under the limited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.
Case: 20-50275      Document: 00515556848          Page: 2   Date Filed: 09/09/2020




                                    No. 20-50275


   § 1326(b)(2), which increased the maximum term of imprisonment to 20
   years and the maximum term of supervised release to three years, is
   unconstitutional because the fact of a prior conviction is treated as a
   sentencing factor rather than as an element of the offense that must be alleged
   in the indictment and proved to a jury beyond a reasonable doubt.
          As Rodriguez concedes, this issue is foreclosed by the Supreme
   Court’s decision in Almendarez-Torres v. United States, 

, 239-47
   (1998). See United States v. Wallace, 

, 497 (5th Cir. 2014); United
   States v. Rojas-Luna, 

, 505-06 (5th Cir. 2008). Thus, summary
   affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 

, 1162 (5th Cir. 1969).
          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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