United States v. Arredondo-Moreno

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50772
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOEL ARREDONDO-MORENO,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:18-CR-2621-1

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:
*

Jo el Arredondo-Moreno appeals the sentence imposed following his
guilty plea conviction for illegal reentry following deportation in violation
8 U.S.C. § 1326. He argues that the enhancement of his sentence pursuant to
§ 1326(b)(2), which increased his statutory maximum sentence to 20 years of
imprisonment and three years of supervised release, is unconstitutional
because of the treatment of the provision as a sentencing factor rather than as

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
February 21, 2020

Lyle W. Cayce
Clerk
Case: 19-50772 Document: 00515318282 Page: 1 Date Filed: 02/21/2020

No. 19-50772
2
an element of a separate offense that must be proved to a jury beyond a
reasonable doubt. He concedes that this issue is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998). However, he seeks to preserve
the issue for possible Supreme Court review because, he argues, subsequent
decisions indicate that the Supreme Court may reconsider its holding in
Almendarez-Torres.
In Almendarez-Torres, 523 U.S. at 239-47, the Supreme Court held that
for purposes of a statutory sentencing enhancement, a prior conviction is not a
fact that must be alleged in an indictment or found by a jury beyond a
reasonable doubt. This court has held that subsequent Supreme Court
decisions did not overrule Almendarez-Torres. See United States v. Wallace,
759 F.3d 486, 497 (5th Cir. 2014) (considering the effect of Alleyne v. United
States, 570 U.S. 99 (2013)); United States v. Pineda-Arrellano, 492 F.3d 624,
625-26 (5th Cir. 2007) (considering the effect of Apprendi v. New Jersey, 530
U.S. 466 (2000)). Thus, Arredondo-Moreno’s argument is foreclosed.
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: 19-50772 Document: 00515318282 Page: 2 Date Filed: 02/21/2020