USA v. Javier Vega-Orozco, No. 17-50963 (5th Cir. 2018)
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Case: 17-50963 Document: 00514502122 Page: 1 Date Filed: 06/06/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-50963 Summary Calendar United States Court of Appeals Fifth Circuit FILED June 6, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JAVIER VEGA-OROZCO, also known as Javier Orozco Vega, also known as Javier Vega Orozco, also known as Javier Orozco-Vega, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 5:17-CR-247-1 Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges. PER CURIAM: * Javier Vega-Orozco, represented by the Federal Public Defender, appeals his within-guidelines sentence for illegal reentry after removal from the United States, in violation of 8 U.S.C. § 1326(a), (b)(1). On appeal, VegaOrozco challenges the Supreme Court’s ruling in Almendarez-Torres v. United States, 523 U.S. 224 (1998), arguing that his sentence pursuant to § 1326(b)(1) 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 17-50963 Document: 00514502122 Page: 2 Date Filed: 06/06/2018 No. 17-50963 is unconstitutional. Seeking to preserve the issue for possible review by the Supreme Court, he correctly concedes that his argument is foreclosed. 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). In Almendarez-Torres, the Supreme Court held that for the purposes of a statutory sentencing enhancement, a prior conviction is not a fact that must be alleged in the indictment or found by a jury beyond a reasonable doubt. 523 U.S. at 239-47. The Government has filed an unopposed motion for summary affirmance. Because Vega-Orozco’s argument 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 is GRANTED, and the judgment is AFFIRMED. The Government’s alternative motion for an extension of time to file a brief is DENIED. 2
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