United States v. Cervantes

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-51172
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SALVADOR MORENO CERVANTES,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:19-CR-2420-1

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

Salvador Moreno Cervantes appeals the 37 -month, within-guidelines
prison term and two-year supervised release term imposed following his guilty
plea conviction for illegally reentering the United States after removal.
Moreno Cervantes 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 an enhanced

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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: 19-51172 Document: 00515486471 Page: 1 Date Filed: 07/13/2020

No. 19-51172
2
penalty based 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 Moreno Cervantes 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: 19-51172 Document: 00515486471 Page: 2 Date Filed: 07/13/2020