United States v. Alonso-Tobar

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-51142
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JCONCEPCION ALONSO-TOBAR,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-563-1

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:
*
Jconcepcion Alonso-Tobar appeals the 46-month sentence imposed after
he pled guilty to being found unlawfully present in the United States after
previous removal. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
May 12, 2020

Lyle W. Cayce
Clerk
Case: 19-51142 Document: 00515413479 Page: 1 Date Filed: 05/12/2020

No. 19-51142
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 raises the issue 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).
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. The judgment of the district court is AFFIRMED.
Case: 19-51142 Document: 00515413479 Page: 2 Date Filed: 05/12/2020