United States v. Montelongo-Montero

United States Court of Appeals
for the Fifth Circuit

No. 20-50201
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Juan Jose Montelongo-Montero, also known as Juan Jose M
M, also known as Juan Jose Montelongo, also known as
Juan Jose
Montero, also known as Juan Jose Montero-Montelongo, also
known as Juanjose Montelongo Montero,

Defendant—Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-811-1

Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Juan Jose Montelongo-Montero appeals his sentence of 30 months of
imprisonment and three years of supervised release, which the district court

*
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opinion should not be published and is not precedent except under the limited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: 20-50201 Document: 00515575485 Page: 1 Date Filed: 09/23/2020

No. 20-50201
2
imposed following his guilty plea conviction for illegal reentry. He asserts
that the enhancement of his sentence based on his prior conviction under 8
U.S.C. § 1326(b)(2), which increased the statutory maximum term of
imprisonment, is unconstitutional because his prior conviction is treated as a
sentencing factor rather than an 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 seeks to preserve the issue for further review.
The Government moves for summary affirmance, asserting that
Montelongo-Montero’s argument is foreclosed.
The parties are correct that Almendarez-Torres forecloses
Montelongo-Montero’s assertion. 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). Accordingly, the Government’s motion for summary affirmance
is GRANTED. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162
(5th Cir. 1969). The district court’s judgment is AFFIRMED, and the
Government’s alternative motion for an extension of time to file its brief is
DENIED AS MOOT.
Case: 20-50201 Document: 00515575485 Page: 2 Date Filed: 09/23/2020