USA v. Gabriel Gonzalez-Medina, No. 17-51033 (5th Cir. 2018)

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Case: 17-51033 Document: 00514541576 Page: 1 Date Filed: 07/05/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-51033 Summary Calendar FILED July 5, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. GABRIEL GONZALEZ-MEDINA, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:16-CR-1660-1 Before JOLLY, OWEN, and HAYNES, Circuit Judges. PER CURIAM: * Gabriel Gonzalez-Medina appeals the 30-month within-guidelines sentence imposed following his guilty plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326(a). He argues that his sentence violates due process because it exceeds the statutory maximum sentence allowed by § 1326(a). Specifically, Gonzalez-Medina argues that a prior conviction that 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 17-51033 Document: 00514541576 Page: 2 Date Filed: 07/05/2018 No. 17-51033 enhances a sentence under § 1326(b) must be alleged in the indictment and proved to a jury. He correctly concedes that his argument 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). However, he seeks to preserve the issue for possible Supreme Court review. The Government has moved for summary affirmance or, alternatively, an extension of time to file a brief. Because Gonzalez-Medina’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 for summary affirmance 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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