United States v. Milla-Rodriguez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50578
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

GERMAN MILLA-RODRIGUEZ,

Defendant–Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:18-CR-953-1

Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:
*

German Milla-Rodriguez pleaded guilty to illegal entry and now appeals
his sentence of 60 months imprisonment and three years of supervised release.
He contends that the recidivism enhancement in 8 U.S.C. § 1326(b) is
unconstitutional because it permits 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. While Milla-Rodriguez

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
March 24, 2020

Lyle W. Cayce
Clerk
Case: 19-50578 Document: 00515357737 Page: 1 Date Filed: 03/24/2020

No. 19-50578
2
acknowledges this argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), he nevertheless seeks to preserve it for possible
Supreme Court review.
The Supreme Court held in Almendarez-Torres that for purposes of a
statutory sentencing enhancement, a prior conviction is not a fact that must
be alleged in an indictment or found beyond a reasonable doubt by a jury. 523
U.S. at 239-47. We have held that subsequent Supreme Court decisions such
as Alleyne v. United States, 570 U.S. 99 (2013) and Apprendi v. New Jersey,
530 U.S. 466 (2000) did not overrule Almendarez-Torres. 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). Thus, Milla-Rodriguez is correct that his
argument is foreclosed, and summary affirmance is appropriate. See
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
The Government’s motion for summary affirmance is GRANTED, the
district court’s judgment is AFFIRMED, and the Government’s alternative
motion for an extension of time to file a brief is DENIED as moot.
Case: 19-50578 Document: 00515357737 Page: 2 Date Filed: 03/24/2020