United States v. Resendiz-Rico

United States Court of Appeals
for the Fifth Circuit

No. 19-51177
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Eduardo Resendiz-Rico,

Defendant—Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:19-CR-1913-1

Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Eduardo Resendiz-Rico appeals the below-guidelines, 24-month
sentence imposed following his guilty plea conviction for illegally reentering
the United States after removal, in violation of 8 U.S.C. § 1326. He argues
that his sentence was imposed under an unconstitutional sentencing

*
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opinion should not be published and is not precedent except under the limited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 2, 2020

Lyle W. Cayce
Clerk
Case: 19-51177 Document: 00515550701 Page: 1 Date Filed: 09/02/2020

No. 19-51177
2
provision because § 1326(b) permits a defendant’s sentence to be enhanced
even if the fact of a prior conviction is not alleged in the indictment and
proved beyond a reasonable doubt. He correctly concedes that his claim is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
raises the issue to preserve it for further possible review. 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).
The Government has filed an unopposed motion for summary
affirmance and, alternatively, seeks an extension of time to file its brief.
Because the issue is foreclosed, summary affirmance is appropriate. See
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, 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 AS MOOT, and the judgment of the district court
is AFFIRMED.
Case: 19-51177 Document: 00515550701 Page: 2 Date Filed: 09/02/2020