USA v. Lopez-Hernandez, No. 20-50742 (5th Cir. 2021)

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Case: 20-50742 Document: 00515694551 Page: 1 Date Filed: 01/05/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 20-50742 Summary Calendar January 5, 2021 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Jesus Lopez-Hernandez, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 4:20-CR-148-1 Before Jolly, Elrod, and Costa, Circuit Judges. Per Curiam:* Jesus Lopez-Hernandez appeals his sentence of 16 months of imprisonment and three years of supervised release, which the district court imposed following his guilty plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326. Lopez-Hernandez contends that § 1326(b)’s recidivism * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 20-50742 Document: 00515694551 Page: 2 Date Filed: 01/05/2021 No. 20-50742 enhancement is unconstitutional because it allows a sentence above the otherwise applicable statutory maximum of two years of imprisonment and one year of supervised release, see § 1326(a); 18 U.S.C. §§ 3559(a)(5), 3583(b)(3), 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, unopposed, for summary affirmance, asserting that Lopez-Hernandez’s argument is foreclosed. The parties are correct that Lopez-Hernandez’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 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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