USA v. Miguel Olvera-Cruz, No. 18-10605 (5th Cir. 2018)

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Case: 18-10605 Document: 00514717354 Page: 1 Date Filed: 11/08/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 18-10605 Summary Calendar United States Court of Appeals Fifth Circuit FILED November 8, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. MIGUEL ANGEL OLVERA-CRUZ, also known as Miguel Angel Cruz, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:17-CR-212-1 Before REAVLEY, JONES, and HIGGINSON, Circuit Judges. PER CURIAM: * Miguel Angel Olvera-Cruz appeals the 27-month within-Guidelines sentence imposed after he pleaded guilty to illegal reentry, 8 U.S.C. § 1326. He challenges this sentence as unconstitutional because it exceeds the statutory maximum contained in § 1326(a), and the prior conviction used to increase his sentence under § 1326(b) was not alleged in the indictment. Olvera-Cruz concedes that this argument is foreclosed by Almendarez-Torres v. United 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 18-10605 Document: 00514717354 Page: 2 Date Filed: 11/08/2018 No. 18-10605 States, 523 U.S. 224 (1998). He seeks to preserve the issue for possible Supreme Court review because, he argues, subsequent Supreme Court decisions indicate that the Court may reconsider this issue. In Almendarez-Torres, the Supreme Court held that, for 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. Id. at 239–47. This court has held that subsequent Supreme Court decisions did not overrule Almendarez-Torres. See, e.g., 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). Thus, Olvera-Cruz’s argument is foreclosed, and summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, the Government’s unopposed motion for summary affirmance is GRANTED, the alternative motion for an extension of time is DENIED, and the judgment of the district court is AFFIRMED. 2