USA v. Carlos Tobar-Torres, No. 18-40224 (5th Cir. 2018)
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Case: 18-40224 Document: 00514732277 Page: 1 Date Filed: 11/21/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 18-40224 Summary Calendar United States Court of Appeals Fifth Circuit FILED November 21, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. CARLOS TOBAR-TORRES, also known as Carlos Omar Tovar-Torres, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:17-CR-511-1 Before DENNIS, CLEMENT, and OWEN, Circuit Judges. PER CURIAM: * Carlos Tobar-Torres appeals the 27-month guidelines sentence and 3year term of supervised release imposed following his guilty plea conviction for illegal reentry. He argues that his sentence violates due process because it exceeds the statutory maximum sentence of 8 U.S.C. § 1326(a). He concedes that the issue whether his eligibility for a sentencing enhancement under § 1326(b) must be alleged in the indictment and proved to a jury is foreclosed 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 18-40224 Document: 00514732277 Page: 2 Date Filed: 11/21/2018 No. 18-40224 by Almendarez-Torres v. United States, 523 U.S. 224 (1998). However, 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, 523 U.S. at 239-47, the Supreme Court held that for purposes of a statutory sentencing enhancement, a prior conviction is not a fact that must be alleged in an indictment or found by a jury beyond a reasonable doubt. This court has held that subsequent Supreme Court decisions did not overrule Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014) (considering the effect of Alleyne v. United States, 570 U.S. 99 (2013)); United States v. Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007) (considering the effect of Apprendi v. New Jersey, 530 U.S. 466 (2000)). Thus, Tobar-Torres’s argument is foreclosed. Accordingly, 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, and the judgment of the district court is AFFIRMED. 2
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