USA v. Alberto Silva-Ibarra, No. 18-10022 (5th Cir. 2018)

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Case: 18-10022 Document: 00514617556 Page: 1 Date Filed: 08/27/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-10022 Summary Calendar FILED August 27, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ALBERTO JORGE SILVA-IBARRA, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:17-CR-348-1 Before JOLLY, COSTA, and HO, Circuit Judges. PER CURIAM: * Alberto Jorge Silva-Ibarra appeals the 30-month sentence imposed following his guilty plea conviction for illegal reentry after removal. He argues that his sentence exceeds the correct statutory maximum sentence of two years under 8 U.S.C. § 1326(a) because the statutory enhancement scheme in § 1326(b) is unconstitutional, and his guilty plea is involuntary and was accepted in violation of Federal Rule of Criminal Procedure 11 because he was 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 18-10022 Document: 00514617556 Page: 2 Date Filed: 08/27/2018 No. 18-10022 not admonished that the fact of a prior conviction is an essential element of the offense that the Government must prove to a jury beyond a reasonable doubt. However, Silva-Ibarra has filed a motion for summary disposition, conceding that these issues are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and explaining that he seeks to preserve the issues for possible Supreme Court review. Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Silva-Ibarra’s motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED. 2

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