United States v. Solis-Garcia

United States Court of Appeals
for the Fifth Circuit

No. 20-50384
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Silvestre Solis-Garcia, also known as Silvestre Garcia, also
known as Silvestre Solis, also known as Silvestre Garcia-
Solis,

Defendant—Appellant,

consolidated with
_____________

No. 20-50385
_____________

United States of America,

Plaintiff—Appellee,

versus

Silvestre Solis-Garcia,

Defendant—Appellant.

United States Court of Appeals
Fifth Circuit
FILED
December 10, 2020

Lyle W. Cayce
Clerk
Case: 20-50384 Document: 00515669511 Page: 1 Date Filed: 12/10/2020

2

Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-902-1
USDC No. 4:19-CR-927-1

Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Silvestre Solis-Garcia pleaded guilty to illegally reentering the United
States after removal in violation of 8 U.S.C. § 1326. Generally, a person
convicted for illegal reentry faces up to two years in prison under § 1326(a).
However, because Solis-Garcia had been removed from the United States
after committing a felony, he faced up to ten years in prison under
§ 1326(b)(1). He was sentenced to 21 months’ imprisonment and three years’
supervised release.
On appeal, Solis-Garcia argues only that under the principles
articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v.
United States, 570 U.S. 99 (2013), § 1326(b) is unconstitutional because it
permits a sentence above the statutory maximum in § 1326(a) based on the
fact of a prior felony conviction neither alleged in the indictment nor found
by a jury beyond a reasonable doubt. But Solis-Garcia concedes, and we have
previously recognized, that this argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 226–27 (1998). 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). Solis-Garcia seeks only to preserve the issue for
further review. Summary affirmance, as requested by the Government, is
therefore appropriate.

*
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opinion should not be published and is not precedent except under the limited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.
Case: 20-50384 Document: 00515669511 Page: 2 Date Filed: 12/10/2020

No. 20-50384
c/w No. 20-50385
3
In the consolidated case, Solis-Garcia appeals the revocation of the
supervised release term that he was serving for a different conviction.
However, in both cases he filed the same brief, which does not address the
revocation. Consequently, he has forfeited any challenge to the revocation or
revocation sentence. See United States v. Reed, 908 F.3d 102, 123 n.81 (5th
Cir. 2018).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgments of the district court are AFFIRMED. The
Government’s alternative motion for an extension of time to file a brief is
DENIED AS MOOT.
Case: 20-50384 Document: 00515669511 Page: 3 Date Filed: 12/10/2020