United States v. Jose-Baltazar

United States Court of Appeals
for the Fifth Circuit

No. 20-50540
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Jose Jose-Baltazar,

Defendant—Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-906-1

Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Jose Jose-Baltazar appeals the 24-month within-guidelines sentence
that the district court imposed following Jose-Baltazar’s plea of guilty to
illegal reentry into the United States after removal. See 8 U.S.C. § 1326(a),
(b)(2). Raising one issue on appeal, Jose-Baltazar argues that the recidivism

*
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opinion should not be published and is not precedent except under the limited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: 20-50540 Document: 00515676909 Page: 1 Date Filed: 12/17/2020

No. 20-50540
2
enhancement under § 1326(b) is unconstitutional in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), and subsequent decisions because the statute
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. Jose-Baltazar concedes that this argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998), but seeks
to preserve the issue for further review. The Government filed an unopposed
motion for summary affirmance in lieu of an appellee’s brief, agreeing that
the issue is foreclosed.
As the Government argues, and Jose-Baltazar concedes, the sole issue
raised on appeal 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). 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,” summary affirmance is appropriate.
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED.
Case: 20-50540 Document: 00515676909 Page: 2 Date Filed: 12/17/2020