United States v. Zubia-Olivas

United States Court of Appeals
for the Fifth Circuit

No. 20-50212
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Samuel Zubia-Olivas,

Defendant—Appellant,

consolidated with
_____________

No. 20-50228
_____________

United States of America,

Plaintiff—Appellee,

versus

Samuel Zubia-Olivas, also known as Juan Zubias-Sanchez,
also known as Samuel Olivas Zubia, also known as Samuel
Olivas-Zubia, also known as Samuel Zubia Olivas, also known as
Samuel Olivias Zubias,

Defendant—Appellant.

United States Court of Appeals
Fifth Circuit
FILED
September 23, 2020

Lyle W. Cayce
Clerk
Case: 20-50212 Document: 00515575444 Page: 1 Date Filed: 09/23/2020

No. 20-50212
c/w No. 20-50228
2

Appeals from the United States District Court
for the Western District of Texas
USDC No. 7:16-CR-90-1
USDC No. 4:19-CR-747-1

Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Samuel Zubia-Olivas appeals his Guidelines sentence of 96 months of
imprisonment and 3 years of supervised release following his guilty plea
conviction for illegal reentry. He argues that the enhancement of his sentence
under 8 U.S.C. § 1326(b)(1), which increases the maximum term of
imprisonment to ten years, is unconstitutional because the statute treats a
prior conviction as a sentencing factor, rather than as an element of a separate
offense that must be listed in the indictment and proved to a jury beyond a
reasonable doubt. He concedes that this issue is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998). However, he seeks to preserve
the issue for possible Supreme Court review because, he argues, subsequent
decisions indicate that the Supreme Court may reconsider its holding in
Almendarez-Torres.
In Almendarez-Torres, 523 U.S. at 239–47, the Supreme Court held
that for purposes of a statutory sentencing enhancement, a prior conviction
is not a fact that must be alleged in an indictment or found by a jury beyond a
reasonable doubt. This Court has held that subsequent Supreme Court
decisions did not overrule Almendarez-Torres. See United States v. Wallace,
759 F.3d 486, 497 (5th Cir. 2014) (concluding that Alleyne v. United States,
570 U.S. 99 (2013) did not disturb Almendarez-Torres); United States v. Rojas-

*
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opinion should not be published and is not precedent except under the limited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.
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No. 20-50212
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Luna, 522 F.3d 502, 505 (5th Cir. 2008) (concluding Apprendi v. New Jersey,
530 U.S. 466 (2000), did not affect the treatment of prior convictions under
Almendarez-Torres). Thus, Zubia-Olivas’s argument is foreclosed.
Accordingly, the judgment of the district court is AFFIRMED, the
Government’s motion for summary affirmance is GRANTED, and the
Government’s alternative motion for an extension of time to file a brief is
DENIED AS MOOT.
Case: 20-50212 Document: 00515575444 Page: 3 Date Filed: 09/23/2020