United States v. Rodriguez-Ramirez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50764
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ABDIAS RODRIGUEZ-RAMIREZ,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:19-CR-366-1

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

Abdias Rodriguez-Ramirez appeals his within-guidelines sentence of 16
months of imprisonment and three years of supervised release imposed
following his guilty-plea conviction for illegal reentry. He asserts that the
enhancement of his sentence pursuant to 8 U.S.C. § 1326(b)(2), which
increased the maximum term of imprisonment to 20 years and the maximum
term of supervised release to three years, is unconstitutional because of the

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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 13, 2020

Lyle W. Cayce
Clerk
Case: 19-50764 Document: 00515309632 Page: 1 Date Filed: 02/13/2020

No. 19-50764
2
treatment of the provision as a sentencing factor rather than as an element of
the offense that must be alleged in the indictment and proved to a jury beyond
a reasonable doubt.
As Rodriguez-Ramirez concedes, this issue is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 239-47 (1998). See United States v.
Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Rojas-Luna, 522
F.3d 502, 505-06 (5th Cir. 2008). Thus, 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: 19-50764 Document: 00515309632 Page: 2 Date Filed: 02/13/2020