USA v. Flores, No. 21-50014 (5th Cir. 2021)
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Case: 21-50014 Document: 00515914573 Page: 1 Date Filed: 06/25/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED June 25, 2021 No. 21-50014 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Guadalupe Flores, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 4:20-CR-257-1 Before Higginbotham, Jones, and Costa, Circuit Judges. Per Curiam:* Guadalupe Flores was sentenced to 27 months of imprisonment and three years of supervised release for his guilty plea conviction of illegal reentry after removal, in violation of 8 U.S.C. § 1326. Raising one issue on appeal, Flores argues that the recidivism enhancement under § 1326(b) is * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-50014 Document: 00515914573 Page: 2 Date Filed: 06/25/2021 No. 21-50014 unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and subsequent decisions because the statute provides for 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. Flores concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998), but seeks to preserve the issue for further review. The Government has filed an unopposed motion for summary affirmance or, in the alternative, an extension of time to file a brief. As the Government argues, and Flores concedes, the sole issue raised on appeal is foreclosed by Almendarez-Torres, 523 U.S. at 226-27. 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). 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, the Government’s alternative motion for an extension of time to file a brief is DENIED AS MOOT, and the judgment of the district court is AFFIRMED. 2
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