USA v. Jconcepcion Alonso-Tobar, No. 19-51142 (5th Cir. 2020)
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Case: 19-51142 Document: 00515413479 Page: 1 Date Filed: 05/12/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 19-51142 Summary Calendar FILED May 12, 2020 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JCONCEPCION ALONSO-TOBAR, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 4:19-CR-563-1 Before JOLLY, JONES, and SOUTHWICK, Circuit Judges. PER CURIAM: * Jconcepcion Alonso-Tobar appeals the 46-month sentence imposed after he pled guilty to being found unlawfully present in the United States after previous removal. He argues that his sentence was imposed under an unconstitutional statute, 8 U.S.C. § 1326(b). Specifically, he contends that in order to trigger a sentencing enhancement under Section 1326(b), the fact of a prior conviction must be alleged in the indictment and proven to a jury; 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 19-51142 Document: 00515413479 Page: 2 Date Filed: 05/12/2020 No. 19-51142 therefore, he asserts that Section 1326(b) is unconstitutional. He correctly concedes that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but raises the issue to preserve it for further possible review. 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). The Government has filed an unopposed motion for summary affirmance and, alternatively, seeks an extension of time to file its brief. Because the issue is foreclosed, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). 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. The judgment of the district court is AFFIRMED. 2
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