United States v. De La Cruz- Tiburcio

United States Court of Appeals
for the Fifth Circuit

No. 20-50489
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Aniceto De La Cruz-Tiburcio,

Defendant—Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:19-CR-3091-1

Before JOLLY, ELROD, and GRAVES, Circuit Judges.
Per Curiam:*
Aniceto De La Cruz-Tiburcio appeals his sentence of 33 months of
imprisonment and three years of supervised release, which the district court
imposed following his guilty plea conviction for illegal reentry. He asserts
that the enhancement of his sentence based on his prior conviction pursuant

*
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opinion should not be published and is not precedent except under the limited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
October 23, 2020

Lyle W. Cayce
Clerk
Case: 20-50489 Document: 00515614474 Page: 1 Date Filed: 10/23/2020

No. 20-50489
2
to 8 U.S.C. § 1326(b)(1), which increased the statutory maximum term of
imprisonment, is unconstitutional because his prior conviction is treated as a
sentencing factor rather than an element of the offense that must be alleged
in the indictment and 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 De La Cruz-
Tiburcio’s argument is foreclosed.
The parties are correct that De La Cruz-Tiburcio’s assertion is
foreclosed by Almendarez-Torres. See United States v. Wallace, 759 F.3d 486,
497 (5th Cir. 2014); United States v. Rojas-Luna, 522 F.3d 502, 505-06
(5th Cir. 2008). 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 as unnecessary, and the
judgment of the district court is AFFIRMED.

Case: 20-50489 Document: 00515614474 Page: 2 Date Filed: 10/23/2020