United States v. Barrios-Alvarado

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50773
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MILTON BARRIOS-ALVARADO,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:18-CR-2726-1

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

Milton Barrios-Alvarado appeals his within-guidelines sentence of 57
months of imprisonment and three years of supervised release imposed
following his guilty plea conviction for illegal reentry after deportation. He
argues that the enhancement of his sentence based on his prior conviction
pursuant to § 1326(b)(1), which increased the statutory maximum term of
imprisonment to 10 years and the statutory maximum term of supervised

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
March 11, 2020

Lyle W. Cayce
Clerk
Case: 19-50773 Document: 00515341154 Page: 1 Date Filed: 03/11/2020

No. 19-50773
2
release to three years, 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.
He 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 possible Supreme
Court review because, he argues, subsequent decisions indicate that the
Supreme Court may reconsider its holding in Almendarez-Torres. The
Government moves for summary affirmance, urging that Barrios-Alvarado’s
argument is foreclosed.
The parties are correct that Barrios-Alvarado’s argument is foreclosed
by Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th
Cir. 2014); United States v. Rojas-Luna, 522 F.3d 502, 505-06 (5th Cir. 2008).
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 judgment of the district court is AFFIRMED.

Case: 19-50773 Document: 00515341154 Page: 2 Date Filed: 03/11/2020