USA v. Gamboa-Rivera, No. 21-50551 (5th Cir. 2021)
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Case: 21-50551 Document: 00516105258 Page: 1 Date Filed: 11/23/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED November 23, 2021 No. 21-50551 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Inocencio Gamboa-Rivera, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 4:20-CR-589-1 Before Smith, Stewart, and Graves, Circuit Judges. Per Curiam:* Inocencio Gamboa-Rivera appeals his sentence of 27 months of imprisonment and three years of supervised release, which the district court imposed following his guilty plea conviction for entry after deportation in violation of 8 U.S.C. § 1326. He contends that the enhancement of his * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-50551 Document: 00516105258 Page: 2 Date Filed: 11/23/2021 No. 21-50551 sentence under § 1326(b)(2) based on his prior conviction for an aggravated felony increased the statutory maximum terms of imprisonment and supervised release. He maintains that the enhancement is unconstitutional because his prior conviction is treated as a sentencing factor rather than an element of the offense that must be alleged in the indictment and found by a jury beyond a reasonable doubt. Gamboa-Rivera 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 this issue is foreclosed. The parties are correct that Gamboa-Rivera’s assertion is foreclosed by Almendarez-Torres. 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). Accordingly, the Government’s motion for summary affirmance is GRANTED, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969); its alternative motion for an extension of time to file an appellate brief is DENIED; and the judgment of the district court is AFFIRMED. 2
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