United States v. Almanza-Portillo

United States Court of Appeals
for the Fifth Circuit

No. 20-10101
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Raul Almanza-Portillo,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-216-1

Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Raul Almanza-Portillo appeals his 41-month, within-guidelines range
sentence for illegal entry following removal. See 8 U.S.C. § 1326(a), (b)(1).
He contends that his being sentenced pursuant to § 1326(b)(1) based on a
prior felony conviction, which increased the statutory maximum sentence for

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
September 23, 2020

Lyle W. Cayce
Clerk
Case: 20-10101 Document: 00515575403 Page: 1 Date Filed: 09/23/2020

No. 20-10101
2
his illegal reentry offense to 10 years, is unconstitutional because the fact of
his prior conviction was neither alleged in the indictment, nor found by a jury
beyond a reasonable doubt, nor admitted by him following a proper
admonishment. Almanza-Portillo concedes that the issue is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to
preserve the issue for possible Supreme Court review because, in his
appreciation, there is reason to believe the Court may revisit Almendarez-
Torres. The Government moves for summary affirmance, urging that
Almanza-Portillo’s argument is foreclosed or, alternatively, for an extension
of time in which to file a merits brief.
The parties are correct that Almanza-Portillo’s argument is clearly
foreclosed by Almendarez-Torres. See United States v. Pineda-Arrellano, 492
F.3d 624, 625 (5th Cir. 2007); United States v. Wallace, 759 F.3d 486, 497 (5th
Cir. 2014); see generally 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 is DENIED. The judgment is AFFIRMED.
Case: 20-10101 Document: 00515575403 Page: 2 Date Filed: 09/23/2020