Case: 20-50587 Document: 00515729980 Page: 1 Date Filed: 02/02/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED February 2, 2021 No. 20-50587 Lyle W. Cayce Summary Calendar Clerk

United States of America, Plaintiff—Appellee, versus Armando Leyva, also known as Armando Leyva-Luevanos, also known as Armando Leyva-Munoz, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 3:20-CR-602-1

Before Davis, Stewart, and Dennis, Circuit Judges.

Per Curiam:* Appealing the judgment in a criminal case, Armando Leyva argues that the application of 8 U.S.C. § 1326(b)(1) in his case, which increased his maximum term of imprisonment to 10 years and his maximum term of

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 20-50587 Document: 00515729980 Page: 2 Date Filed: 02/02/2021

No. 20-50587

supervised release to three years, is unconstitutional because it was based on the fact of a prior felony conviction, which was neither alleged in his indictment nor found by a jury beyond a reasonable doubt. As he concedes, the issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226 (1998).

Specifically, in Almendarez-Torres, 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 proved to a jury beyond a reasonable doubt. 523 U.S. at 226-27, 239-47. 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); United States v. Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007).

The Government’s motion for summary affirmance is GRANTED, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), and the judgment of the district court is AFFIRMED. The Government’s alternative motion for an extension of time to file a brief is DENIED.