USA v. Chavez-Portillo, No. 20-50866 (5th Cir. 2021)
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Case: 20-50866 Document: 00515757595 Page: 1 Date Filed: 02/25/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED February 25, 2021 No. 20-50866 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Alfredo Jesus Chavez-Portillo, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 2:20-CR-433-1 Before Jolly, Elrod, and Graves, Circuit Judges. Per Curiam:* Alfredo Jesus Chavez-Portillo appeals the within-guidelines sentence of 21 months of imprisonment and three years of supervised release imposed following his guilty plea conviction for illegal reentry after removal from the United States. He argues for the first time on appeal that 8 U.S.C. § 1326(b) * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 20-50866 Document: 00515757595 Page: 2 Date Filed: 02/25/2021 No. 20-50866 is unconstitutional because it increases the statutory maximum sentence based on the fact of a prior felony conviction 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), and he seeks to preserve the issue for further review. The Government filed an unopposed motion for summary affirmance agreeing that the issue is foreclosed and, in the alternative, a motion for an extension of time to file a brief. As the Government argues, and Chavez-Portillo agrees, the sole issue raised on appeal is foreclosed by Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. PinedaArrellano, 492 F.3d 624, 625-26 (5th Cir. 2007). Because the issue is foreclosed, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. The Government’s alternative motion for an extension of time to file a brief is DENIED as moot. 2
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