Case: 19-51149 Document: 00515468792 Page: 1 Date Filed: 06/26/2020

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-51149 June 26, 2020 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ALEX MURILLO, also known as Juan Carlos Diaz-Segarra, also known as Juan Diaz, also known as Alex Murrillo, also known as Alexander Murillo- Quinones, also known as Emmanuel Martinez-Lomba, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 1:19-CR-160-1

Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.

PER CURIAM: * Alex Murillo appeals his sentence of 60 months of imprisonment and three years of supervised release, which the district court imposed following his guilty plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326. He argues that the enhancement of his sentence based on his prior conviction pursuant to § 1326(b)(1), which increased the statutory maximum terms of

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Case: 19-51149 Document: 00515468792 Page: 2 Date Filed: 06/26/2020

No. 19-51149 imprisonment and supervised release, 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, urging that Murillo’s argument is foreclosed.

The parties are correct that Murillo’s argument 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, and the judgment of the district court is AFFIRMED.