United States v. Vazquez-Aranda

United States Court of Appeals
for the Fifth Circuit

No. 20-50136
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Jose Fernando Vazquez-Aranda, also known as Jose Vasquez,
also known as Jose Fernando Aranda-Vazquez,

Defendant—Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:19-CR-211-1

Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Jose Fernando Vazquez-Aranda appeals his conviction for illegal
reentry into the United States. He argues that the enhanced sentencing range
in 8 U.S.C. § 1326(b) is unconstitutional because a prior conviction is an

*
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opinion should not be published and is not precedent except under the limited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
August 24, 2020

Lyle W. Cayce
Clerk
Case: 20-50136 Document: 00515538850 Page: 1 Date Filed: 08/24/2020

No. 20-50136
2
element of the offense that must be alleged in the indictment and found by a
jury beyond a reasonable doubt. He concedes that the issue is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he wishes to
preserve it for further review. The Government has filed an unopposed
motion for summary affirmance, agreeing that the issue is foreclosed by
Almendarez-Torres. Alternately, the Government requests an extension of
time to file its brief.
In Almendarez-Torres, 523 U.S. at 226-27, the Supreme Court held
that a prior conviction used to enhance a sentence under § 1326(b) is a
sentencing factor, not an element of the offense, and thus need not be alleged
in the indictment. Following Almendarez-Torres, the Court held that facts
used to increase a sentence beyond the statutory maximum must be alleged
in the indictment and proved to a jury, except for the fact of a prior
conviction. See Apprendi v. New Jersey, 530 U.S. 466, 476, 490 (2000).
Apprendi and subsequent Supreme Court cases did not overrule Almendarez-
Torres, which remains binding precedent. See United States v. Wallace, 759
F.3d 486, 497 (5th Cir. 2014); United States v. Garza-Lopez, 410 F.3d 268,
276 (5th Cir. 2005). Accordingly, Vazquez-Aranda’s sole appellate
argument is foreclosed by Almendarez-Torres.
Because the Government’s position “is clearly right as a matter of law
so that there can be no substantial question as to the outcome of the case,”
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, and the judgment of the district court is AFFIRMED.

Case: 20-50136 Document: 00515538850 Page: 2 Date Filed: 08/24/2020