United States v. Murillo

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-51149
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ALEX MURILLO, also known as Juan Carlos Diaz-Segarra, also known as
Juan Diaz, also known as Alex Murrillo, also known as Alexander Murillo-
Quinones, also known as Emmanuel Martinez-Lomba,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:19-CR-160-1

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

Alex Murillo appeals his sentence of 60 months of imprisonment and
three years of supervised release, which the district court imposed following
his guilty plea conviction for illegal reentry, 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 terms of

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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: 19-51149 Document: 00515468792 Page: 1 Date Filed: 06/26/2020

No. 19-51149
2
imprisonment and supervised release, 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 further review. The Government moves for summary affirmance, urging
that Murillo’s argument is foreclosed.
The parties are correct that Murillo’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: 19-51149 Document: 00515468792 Page: 2 Date Filed: 06/26/2020