USA v. Esteban Aguilera-Alvarez, No. 18-50285 (5th Cir. 2019)
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Case: 18-50285 Document: 00514791464 Page: 1 Date Filed: 01/11/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-50285 Summary Calendar FILED January 11, 2019 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. ESTEBAN AGUILERA-ALVAREZ, also known as Esteban Perez-Alvarez, Defendant - Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:17-CR-2214-1 Before DENNIS, CLEMENT, and OWEN, Circuit Judges. PER CURIAM: * Esteban Aguilera-Alvarez appeals the 30-month, within-guidelines prison term imposed following his guilty plea conviction for illegally reentering the United States after removal. Raising one issue, Aguilera-Alvarez argues that his indictment did not allege a conviction occurring before his removal and that, for this reason, his prison term, imposed under 8 U.S.C. § 1326(b), was in excess of the statutory maximum permitted under § 1326(a) and violated his 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 18-50285 Document: 00514791464 Page: 2 Date Filed: 01/11/2019 No. 18-50285 due process rights. The Government has filed an unopposed motion for summary affirmance and, alternatively, seeks an extension of time to file its brief. As the Government argues and as Aguilera-Alvarez concedes, the only issue raised on appeal is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). 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). Because the issue is foreclosed, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, the Government’s motion for summary affirmance is GRANTED, and the judgment is AFFIRMED. The Government’s alternative motion for an extension of time to file its brief is DENIED. 2
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