USA v. Rivas-Garcia, No. 21-50464 (5th Cir. 2021)

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Case: 21-50464 Document: 00516102515 Page: 1 Date Filed: 11/22/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED November 22, 2021 No. 21-50464 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Elmer Josue Rivas-Garcia, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 3:21-CR-70-1 Before King, Costa, and Ho, Circuit Judges. Per Curiam:* Elmer Josue Rivas-Garcia appeals his sentence of 46 months of imprisonment and three 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under 8 U.S.C. § 1326(b) is * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-50464 Document: 00516102515 Page: 2 Date Filed: 11/22/2021 No. 21-50464 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 Rivas-Garcia’s argument is foreclosed. The parties are correct that Rivas-Garcia’s assertion is foreclosed by Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014). 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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