Case: 20-50275 Document: 00515556848 Page: 1 Date Filed: 09/09/2020

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 9, 2020 No. 20-50275 Lyle W. Cayce Summary Calendar Clerk

United States of America, Plaintiff—Appellee, versus Margarito Rodriguez, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 2:19-CR-1174-1

Before Southwick, Duncan, and Oldham, Circuit Judges.

Per Curiam:* Margarito Rodriguez appeals his above-guidelines sentence of 30 months of imprisonment and three years of supervised release following his guilty plea conviction for illegal reentry into the United States. Rodriguez asserts that the enhancement of his sentence pursuant to 8 U.S.C.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

Case: 20-50275 Document: 00515556848 Page: 2 Date Filed: 09/09/2020

No. 20-50275

§ 1326(b)(2), which increased the maximum term of imprisonment to 20 years and the maximum term of supervised release to three years, is unconstitutional because the fact of a prior conviction is treated as a sentencing factor rather than as an element of the offense that must be alleged in the indictment and proved to a jury beyond a reasonable doubt.

As Rodriguez concedes, this issue is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998). 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). Thus, 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, and the judgment of the district court is AFFIRMED.