United States v. Nunez-Lopez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50528
Summary Calendar

Consolidated with 19-50530

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE ARMANDO NUNEZ-LOPEZ,

Defendant-Appellant

Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:18-CR-862-1
USDC No. 4:11-CR-376-6

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:
*

Jose Armando Nunez-Lopez filed notices of appeal from the order
revoking his supervised release and from a new judgment of conviction entered
after his guilty plea to illegal reentry. He argues that the enhancement of his
sentence pursuant to 8 U.S.C. § 1326(b)(2), which increased the statutory

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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 23, 2020

Lyle W. Cayce
Clerk
Case: 19-50528 Document: 00515282865 Page: 1 Date Filed: 01/23/2020

No. 19-50528
2
maximum term of imprisonment to 20 years for his illegal reentry offense, is
unconstitutional because of the treatment of the provision as a sentencing
factor rather than as an element of the offense that must be alleged in the
indictment and proved to a jury beyond a reasonable doubt. Nunez-Lopez
concedes that this issue is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224 (1998). However, he seeks to preserve the argument for possible
Supreme Court review because, he argues, subsequent decisions indicate that
the Supreme Court may reconsider its holding in Almendarez-Torres.
In that opinion, the Supreme Court held that for purposes of a statutory
sentencing enhancement, a prior conviction is not a fact that must be alleged
in an indictment or found by a jury beyond a reasonable doubt. Id. at 239–47.
This court has held that subsequent Supreme Court decisions did not overrule
Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir.
2014) (considering the effect of Alleyne v. United States, 570 U.S. 99 (2013));
United States v. Rojas-Luna, 522 F.3d 502, 505–06 (5th Cir. 2008) (considering
the effect of Apprendi v. New Jersey, 530 U.S. 466 (2000)). Thus, Nunez-
Lopez’s argument is foreclosed.
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 judgments of the district court are AFFIRMED.
Case: 19-50528 Document: 00515282865 Page: 2 Date Filed: 01/23/2020