United States v. Fernandez-Vargas

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-11142
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE HILARIO FERNANDEZ-VARGAS,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CR-621-1

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:
*

Jose Hilario Fernandez-Vargas appeals his 48-month, within guidelines
range sentence for illegal reentry by a deported alien. Fernandez-Vargas
contends that his sentence violates the Fifth and Sixth Amendments insofar
as he was sentenced beyond the two-year maximum statutory sentence of
8 U.S.C. § 1326(a) based on a prior felony conviction that was not listed in the
indictment, admitted by him, or found by a jury beyond a reasonable doubt.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
June 25, 2020

Lyle W. Cayce
Clerk
Case: 19-11142 Document: 00515466998 Page: 1 Date Filed: 06/25/2020

No. 19-11142
2
He concedes that this issue is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but he seeks to preserve the issue for future review.
The Government moves for summary affirmance or, alternatively, for an
extension of time in which to file a merits brief.
The parties are correct that Fernandez-Vargas ’s argument is clearly
foreclosed by Almendarez-Torres. See United States v. Pineda-Arrellano,
492 F.3d 624, 625 (5th Cir. 2007); United States v. Wallace, 759 F.3d 486, 497
(5th Cir. 2014); see generally Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969). Accordingly, the Government’s motion for summary
affirmance is GRANTED. The Government’s alternative motion for an
extension of time is DENIED. The judgment is AFFIRMED.
Case: 19-11142 Document: 00515466998 Page: 2 Date Filed: 06/25/2020