USA v. Jose Gomez-Vazquez, No. 18-50280 (5th Cir. 2018)
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Case: 18-50280 Document: 00514696415 Page: 1 Date Filed: 10/24/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 18-50280 Summary Calendar United States Court of Appeals Fifth Circuit FILED October 24, 2018 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff-Appellee v. JOSE ROBERTO GOMEZ-VAZQUEZ, also known as Jose Roberto VasquezVillegas, also known as Jose Roberto Vasquez-Vilegas, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:17-CR-2559-1 Before DAVIS, HAYNES, and GRAVES, Circuit Judges. PER CURIAM: * Jose Roberto Gomez-Vazquez appeals the 57-month within-guidelines sentence imposed following his guilty plea conviction for attempted illegal reentry. He argues that his indictment did not allege that he had a prior conviction and that, therefore his sentence under 8 U.S.C. § 1326(b)(1) violates his due process rights by exceeding the two-year statutory maximum provided 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 18-50280 Document: 00514696415 Page: 2 Date Filed: 10/24/2018 No. 18-50280 by § 1326(a). He concedes that this argument is foreclosed by AlmendarezTorres 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 the 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, e.g., 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, Gomez-Vazquez’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 motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. 2
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