United States v. Flores-Riojas

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 20-50176
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GERARDO FLORES-RIOJAS,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:19-CR-454-1

Before CLEMENT, HIGGINSON, and ENGELHARDT, Circuit Judges.
PER CURIAM:
*

Gerardo Flores-Riojas appeals the 46-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 that are neither
alleged in the indictment nor found by a jury beyond a reasonable doubt.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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: 20-50176 Document: 00515504663 Page: 1 Date Filed: 07/27/2020

No. 20-50176
2
Flores-Riojas 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 it for further possible review. See United States v. Wallace,
759 F.3d 486, 497 (5th Cir. 2014).
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: 20-50176 Document: 00515504663 Page: 2 Date Filed: 07/27/2020