United States v. Vargas-Torres

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-51148
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

TOMAS VARGAS-TORRES,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:19-CR-2677-1

Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM:
*

Tomas Vargas-Torres appeals the 30-month, within-guidelines prison
term imposed following his guilty plea conviction for illegally reentering the
United States after removal. Vargas-Torres argues that under the principles
articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v.
United States, 570 U.S. 99 (2013), 8 U.S.C. § 1326(b) is unconstitutional
because it permits a sentence above the statutory maximum in § 1326(a) based

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
July 13, 2020

Lyle W. Cayce
Clerk
Case: 19-51148 Document: 00515486899 Page: 1 Date Filed: 07/13/2020

No. 19-51148
2
on the fact of a prior felony conviction not alleged in the indictment nor found
by a jury beyond a reasonable doubt. The Government has filed an unopposed
motion for summary affirmance and, alternatively, seeks an extension of time
to file its brief.
As the Government argues and as Vargas-Torres concedes, this issue is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). 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 is AFFIRMED. The Government’s alternative
motion for an extension of time to file its brief is DENIED.
Case: 19-51148 Document: 00515486899 Page: 2 Date Filed: 07/13/2020