United States v. Bustamante-Muniz

United States Court of Appeals
for the Fifth Circuit

No. 20-50536
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Edmundo Bustamante-Muniz,

Defendant—Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-844-1

Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Edmundo Bustamante-Muniz appeals his sentence of 57 months of
imprisonment and three years of supervised release, which the district court
imposed following his guilty plea conviction for illegal reentry into the United
States after deportation. He argues that the recidivism enhancement under

*
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opinion should not be published and is not precedent except under the limited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
December 17, 2020

Lyle W. Cayce
Clerk
Case: 20-50536 Document: 00515678073 Page: 1 Date Filed: 12/17/2020

No. 20-50536
2
8 U.S.C. § 1326(b) is unconstitutional because it allows a sentence above the
otherwise applicable statutory maximum based on facts that are neither
alleged in the indictment nor 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 Bustamante-
Muniz’s argument is foreclosed.
The parties are correct that Bustamante-Muniz’s assertion is
foreclosed by Almendarez-Torres. 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). 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 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: 20-50536 Document: 00515678073 Page: 2 Date Filed: 12/17/2020