United States v. Contreras-Rojas, No. 21-50500 (5th Cir. 2021)

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Contreras-Rojas appealed the sentence imposed following his guilty plea conviction of illegal reentry, arguing that the enhancement of his sentence under 8 U.S.C. 1326(b)(1) is unconstitutional because the fact of a prior conviction was neither found by a jury nor alleged in the indictment.

The Fifth Circuit granted summary affirmance. The Supreme Court’s 1998 “Almendarez-Torres” decision 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. The Fifth Circuit reiterated that “[i]n the future, barring new developments in Supreme Court jurisprudence, arguments seeking reconsideration of Almendarez-Torres will be viewed with skepticism.”

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Case: 21-50500 Document: 00516074331 Page: 1 Date Filed: 10/29/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 29, 2021 No. 21-50500 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Fernando Contreras-Rojas, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 4:20-CR-579-1 Before Davis, Jones, and Elrod, Circuit Judges. Per Curiam: Fernando Contreras-Rojas appeals the sentence imposed following his guilty plea conviction of illegal reentry. The sole argument Contreras-Rojas raises on appeal is that the enhancement of his sentence under 8 U.S.C. § 1326(b)(1) is unconstitutional because the fact of a prior conviction was neither found by a jury nor alleged in the indictment. 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 Case: 21-50500 Document: 00516074331 Page: 2 Date Filed: 10/29/2021 No. 21-50500 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 held that subsequent Supreme Court decisions such as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), 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, Contreras-Rojas’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). Over fourteen years ago, this court opined that appeals based on Almendarez-Torres are virtually all frivolous. See United States v. PinedaArrellano, 492 F.3d 624, 625 (5th Cir. 2007). After hundreds, if not thousands, more cases challenging Almendarez-Torres, we reiterate and reaffirm our statement that “[i]n the future, barring new developments in Supreme Court jurisprudence, arguments seeking reconsideration of Almendarez-Torres will be viewed with skepticism.” Id. at 626. We urge “appellants and their counsel not to damage their credibility with this court by asserting non-debatable arguments.” Id. at 626. We meant it then and mean it now. 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

Primary Holding

Fifth Circuit summarily affirms a sentence imposed following a conviction of illegal reentry, rejecting an argument that the enhancement of the sentence under 8 U.S.C. 1326(b)(1) was unconstitutional because the fact of a prior conviction was neither found by a jury nor alleged in the indictment.

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