United States v. Esparza-Lopez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50769
Summary Calendar

Consolidated with 19-50771

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

REYNALDO ESPARZA-LOPEZ,

Defendant-Appellant

Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:17-CR-653-1
USDC No. 2:19-CR-339-1

Before DAVIS, SMITH and HIGGINSON, Circuit Judges.
PER CURIAM:
*

Reynaldo Esparza-Lopez appeals from a judgment revoking his
previously-imposed supervised release and from a judgment of conviction on
his guilty plea to illegal reentry into the United States in violation of 8 U.S.C.
§ 1326. He argues that the enhancement of his sentence based on his prior
conviction pursuant to § 1326(b)(1), which increased the statutory maximum

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
February 27, 2020

Lyle W. Cayce
Clerk
Case: 19-50769 Document: 00515324558 Page: 1 Date Filed: 02/27/2020

No. 19-50769
c/w No. 19-50771

2
term of imprisonment to 10 years for his illegal reentry offense, 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. As he concedes, the issue is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998).
However, he seeks to preserve the issue for possible Supreme Court review
because, he argues, subsequent decisions indicate that the Supreme Court may
reconsider its holding in Almendarez-Torres.
In Almendarez-Torres, 523 U.S. at 239-47, 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. 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, Esparza-Lopez’s argument is foreclosed.
Accordingly, the Government’s motion for summary affirmance is
GRANTED, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.
1969), 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: 19-50769 Document: 00515324558 Page: 2 Date Filed: 02/27/2020