Case: 20-50540 Document: 00515676909 Page: 1 Date Filed: 12/17/2020

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED December 17, 2020 No. 20-50540 Lyle W. Cayce Summary Calendar Clerk

United States of America, Plaintiff—Appellee, versus Jose Jose-Baltazar, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:19-CR-906-1

Before Haynes, Willett, and Ho, Circuit Judges.

Per Curiam:* Jose Jose-Baltazar appeals the 24-month within-guidelines sentence that the district court imposed following Jose-Baltazar’s plea of guilty to illegal reentry into the United States after removal. See 8 U.S.C. § 1326(a), (b)(2). Raising one issue on appeal, Jose-Baltazar argues that the recidivism

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 20-50540 Document: 00515676909 Page: 2 Date Filed: 12/17/2020

No. 20-50540

enhancement under § 1326(b) is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and subsequent decisions because the statute allows a sentence above the otherwise applicable statutory maximum based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. Jose-Baltazar concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998), but seeks to preserve the issue for further review. The Government filed an unopposed motion for summary affirmance in lieu of an appellee’s brief, agreeing that the issue is foreclosed.

As the Government argues, and Jose-Baltazar concedes, the sole issue raised on appeal is foreclosed by Almendarez-Torres. 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). Because the Government’s position “is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case,” summary affirmance is appropriate.

Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Accordingly, the Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED.