USA v. Antonio Huerta-Nunez, No. 20-50322 (5th Cir. 2020)

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Case: 20-50322 Document: 00515633320 Page: 1 Date Filed: 11/10/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 20-50322 Summary Calendar November 10, 2020 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Antonio Huerta-Nunez, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 1:19-CR-313-1 Before Wiener, Southwick, and Duncan, Circuit Judges. Per Curiam:* Antonio Huerta-Nunez appeals his sentence of 21 months of imprisonment and two years of supervised release, which the district court imposed following his guilty plea conviction for illegal reentry. He argues that the recidivism enhancement under 8 U.S.C. § 1326(b) is * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-50322 Document: 00515633320 Page: 2 Date Filed: 11/10/2020 No. 20-50322 unconstitutional because it allows a sentence above the otherwise applicable statutory maximum based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. He concedes that the issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve the issue for further review. The Government moves for summary affirmance, asserting that Huerta-Nunez’s argument is foreclosed. The parties are correct that Huerta-Nunez’s assertion is foreclosed by Almendarez-Torres. 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). Accordingly, the Government’s motion for summary affirmance is GRANTED, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), 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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