United States v. Resendiz-Trejo

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50915
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

HILARIO RESENDIZ-TREJO,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:19-CR-1335-1

Before STEWART, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:
*

Hilario Resendiz-Trejo appeals his 21-month sentence imposed following
his guilty plea for illegal reentry into the United States, in violation of 8 U.S.C.
§ 1326. Raising one issue on appeal, Resendiz-Trejo argues that his sentence,
imposed under § 1326(b)(1), violates his due process rights by exceeding the
two-year statutory maximum set forth in § 1326(a) because the indictment did
not allege a prior conviction necessary for the § 1326(b)(1) enhancement. He

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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 26, 2020

Lyle W. Cayce
Clerk
Case: 19-50915 Document: 00515468967 Page: 1 Date Filed: 06/26/2020

No. 19-50915
2
concedes that this argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 226-27 (1998), but seeks to preserve the issue for further
review. The Government filed an unopposed motion for summary affirmance
agreeing that the issue is foreclosed and, in the alternative, a motion for an
extension of time to file a brief.
As the Government argues, and Resendiz-Trejo concedes, the sole issue
raised on appeal is foreclosed by 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). Because the issue is foreclosed, summary
affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d
1158, 1162 (5th Cir. 1969).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED. The
Government’s alternative motion for an extension of time to file a brief is
DENIED.

Case: 19-50915 Document: 00515468967 Page: 2 Date Filed: 06/26/2020