United States v. Garcia-Vasquez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 20-50006
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

KEVIN WILMAR GARCIA-VASQUEZ, also known as Kevin Wilmar Portillo-
Garcia,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-603-1

Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM:
*

Kevin Wilmar Garcia-Vasquez appeals the 27-month sentence imposed
following his guilty plea conviction for being found unlawfully in the United
States following a previous removal. He argues that the recidivism
enhancement under 8 U.S.C. § 1326(b) is unconstitutional because it allows a
sentence above the otherwise applicable statutory maximum based on facts

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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 27, 2020

Lyle W. Cayce
Clerk
Case: 20-50006 Document: 00515504234 Page: 1 Date Filed: 07/27/2020

No. 20-50006
2
that are neither alleged in the indictment or found by a jury beyond a
reasonable doubt. Garcia-Vasquez correctly concedes that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
raises the issue to preserve for further possible review. 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).
The Government has filed an unopposed motion for summary affirmance
and, alternatively, seeks an extension of time to file its brief. 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; 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: 20-50006 Document: 00515504234 Page: 2 Date Filed: 07/27/2020