United States v. Ponce-Ruiz

United States Court of Appeals
for the Fifth Circuit

No. 20-50005
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Gabriel Ponce-Ruiz,

Defendant—Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:19-CR-2450-1

Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Gabriel Ponce-Ruiz appeals his conviction for illegal reentry into the
United States. He argues that the enhanced sentencing range in § 1326(b) is
unconstitutional because a prior conviction is an element of the offense that
must be alleged in the indictment or found by a jury beyond a reasonable

*
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not be published and is not precedent except under the limited circumstances set forth in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
September 30, 2020

Lyle W. Cayce
Clerk
Case: 20-50005 Document: 00515584635 Page: 1 Date Filed: 09/30/2020

No. 20-50005
2
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. Neither Apprendi v. New
Jersey, 530 U.S. 466, 476, 490 (2000), nor subsequent Supreme Court cases
overruled 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, Ponce-Ruiz’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: 20-50005 Document: 00515584635 Page: 2 Date Filed: 09/30/2020