United States v. Galindo-Caballero

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50788
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAVIER GALINDO-CABALLERO,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:19-CR-82-1

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:
*
Javier Galindo-Caballero appeals the 54-month sentence imposed
following conviction based on his guilty plea of illegal reentry after having been
previously removed. 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 Section 1326(b), the fact of a
prior conviction must be alleged in the indictment and proven to a jury;

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
April 2, 2020

Lyle W. Cayce
Clerk
Case: 19-50788 Document: 00515369463 Page: 1 Date Filed: 04/02/2020

No. 19-50788
2
therefore, he asserts that Section 1326(b) is unconstitutional. He correctly
concedes that his argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but he makes the argument to preserve it 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: 19-50788 Document: 00515369463 Page: 2 Date Filed: 04/02/2020