USA v. Ricardo Guzman-Najera, No. 18-51050 (5th Cir. 2019)

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Case: 18-51050 Document: 00515083793 Page: 1 Date Filed: 08/20/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 18-51050 Summary Calendar United States Court of Appeals Fifth Circuit FILED August 20, 2019 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. RICARDO GUZMAN-NAJERA, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:18-CR-2390-1 Before JOLLY, JONES, and SOUTHWICK, Circuit Judges. PER CURIAM: * Ricardo Guzman-Najera appeals the 21-month, within-guidelines sentence imposed following his guilty-plea conviction of illegal reentry in violation of 8 U.S.C. § 1326. He argues that his sentence violates due process because it exceeds the statutory maximum sentence allowed by Section 1326(a). Specifically, Guzman-Najera argues that a prior conviction 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 18-51050 Document: 00515083793 Page: 2 Date Filed: 08/20/2019 No. 18-51050 that enhances a sentence under Section 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 Guzman-Najera’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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