United States v. De Vicente-Olvera

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50675
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARTIN DE VICENTE-OLVERA, also known as Martin Devicente-Olvera,
also known as Martin De Vicente, also known as Martin Olvera,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:19-CR-677-1

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

Martin De Vicente-Olvera appeals the 33-month sentence imposed
following his guilty plea conviction for being found unlawfully present in the
United States after previous deportation. He argues that his sentence was
imposed under an unconstitutional statute, 8 U.S.C. § 1326(b). Specifically, he
contends that in order to trigger a sentencing enhancement under § 1326(b),

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
May 18, 2020

Lyle W. Cayce
Clerk
Case: 19-50675 Document: 00515419300 Page: 1 Date Filed: 05/18/2020

No. 19-50675
2
the fact of a prior conviction must be alleged in the indictment and proven to a
jury; therefore, he asserts that § 1326(b) is unconstitutional. He correctly
concedes that his argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but 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: 19-50675 Document: 00515419300 Page: 2 Date Filed: 05/18/2020