USA v. Flores-Gamino, No. 21-50504 (5th Cir. 2021)
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Case: 21-50504 Document: 00516104177 Page: 1 Date Filed: 11/22/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 21-50504 November 22, 2021 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Juan Daniel Flores-Gamino, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-5-1 Before Jolly, Willett, and Engelhardt, Circuit Judges. Per Curiam:* Juan Daniel Flores-Gamino appeals his conviction and sentence for illegal reentry in violation of 8 U.S.C. §§ 1326(a) and (b)(2). For the first time on appeal, Flores-Gamino contends that it violates the Constitution to treat a prior conviction that increases the statutory maximum under § 1326(b)(2) as a sentencing factor, rather than an element of the offense. He concedes * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-50504 Document: 00516104177 Page: 2 Date Filed: 11/22/2021 No. 21-50504 that this argument is squarely foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226 (1998), but wishes to preserve it for further review. We agree with the parties that Almendarez-Torres resolves the sole issue in this appeal. While Flores-Gamino invokes Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United States, 570 U.S. 99 (2013) in support of his claim, these cases did not overrule Almendarez-Torres. Alleyne stated explicitly that it was not overruling Almendarez-Torres. Alleyne, 570 U.S. at 111 n.1. Our court has likewise recognized that Almendarez-Torres remains good law. 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). Because the Government’s position “is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case,” summary affirmance is proper. Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, the motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. The Government’s alternative motion for an extension of time is DENIED AS MOOT. 2
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