USA v. Berrios-Rios, No. 21-50425 (5th Cir. 2021)
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Case: 21-50425 Document: 00516091681 Page: 1 Date Filed: 11/12/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED November 12, 2021 No. 21-50425 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Oscar Mauricio Berrios-Rios, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 4:20-CR-536-1 Before Higginbotham, Higginson, and Duncan, Circuit Judges. Per Curiam:* Oscar Mauricio Berrios-Rios appeals the sentence imposed following his guilty-plea conviction of illegal reentry into the United States, arguing only that the enhancement of his sentence pursuant to 8 U.S.C. § 1326(b)(2) * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-50425 Document: 00516091681 Page: 2 Date Filed: 11/12/2021 No. 21-50425 is unconstitutional because the fact of a prior conviction must be charged and proved to a jury beyond a reasonable doubt. He acknowledges that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he wishes to preserve the issue for further review. The Government has moved for summary affirmance or, in the alternative, for an extension of time to file a brief. Almendarez-Torres held that a prior conviction is not a fact that must be alleged in an indictment or found beyond a reasonable doubt by a jury for purposes of a statutory sentencing enhancement. 523 U.S. at 239-47. This court has concluded that subsequent Supreme Court decisions did not overrule Almendarez-Torres. See, e.g., 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, Berrios-Rios’s concession of foreclosure is correct, and summary judgment is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). 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, and the district court’s judgment is AFFIRMED. 2
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