United States v. Hernandez-Nevarez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 20-50074
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JULIAN HERNANDEZ-NEVAREZ,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:19-CR-2969-1

Before HAYNES, WILLETT and HO, Circuit Judges.
PER CURIAM:
*

Julian Hernandez-Nevarez appeals the within-guidelines, 37-month
sentence imposed following his guilty plea conviction for illegally reentering
the United States after removal, in violation of 8 U.S.C. § 1326. He argues
that his sentence was imposed under an unconstitutional sentencing provision
because § 1326(b) permits a defendant’s sentence to be enhanced even if the
fact of a prior conviction is not alleged in the indictment and proved beyond a

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
August 7, 2020

Lyle W. Cayce
Clerk
Case: 20-50074 Document: 00515519287 Page: 1 Date Filed: 08/07/2020

No. 20-50074
2
reasonable doubt. He correctly concedes that his claim is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he raises the
issue to preserve it 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: 20-50074 Document: 00515519287 Page: 2 Date Filed: 08/07/2020