United States v. Navarro

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10471
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

EDGARDO NAVARRO,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CR-279-1

Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:
*

Edgardo Navarro appeals his sentence to 27 months of imprisonment
and three years of supervised release following his guilty plea conviction for
illegal reentry. He contends that the enhancement of his sentence pursuant to
8 U.S.C. § 1326(b)(2) is unconstitutional because the fact of a prior conviction
must be charged and proved to a jury beyond a reasonable doubt. While
Navarro acknowledges this argument is foreclosed by Almendarez-Torres v.

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
January 22, 2020

Lyle W. Cayce
Clerk
Case: 19-10471 Document: 00515281405 Page: 1 Date Filed: 01/22/2020

No. 19-10471
2
United States, 523 U.S. 224 (1998), he nevertheless seeks to preserve it for
possible Supreme Court review.
The Supreme Court held in Almendarez-Torres that for purposes of a
statutory sentencing enhancement, a prior conviction is not a fact that must
be alleged in an indictment or found beyond a reasonable doubt by a jury. 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 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). Thus, Navarro is correct that
his argument is foreclosed, and summary affirmance 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.
Case: 19-10471 Document: 00515281405 Page: 2 Date Filed: 01/22/2020