Case: 20-10974 Document: 00515861061 Page: 1 Date Filed: 05/13/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED May 13, 2021 No. 20-10974 Summary Calendar Lyle W. Cayce Clerk

United States of America, Plaintiff—Appellee, versus Leonel Rodriguez-Caraveo, Defendant—Appellant.

Appeal from the United States District Court for the Northern District of Texas USDC No. 5:20-CR-1-1

Before Haynes, Willett, and Ho, Circuit Judges.

Per Curiam:* Leonel Rodriguez-Caraveo appeals his conviction for illegal reentry after deportation and his within-guidelines sentence of 32 months of imprisonment and three years of supervised release. He argues for the first time on appeal that 8 U.S.C. § 1326(b) is unconstitutional because it allows a

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 20-10974 Document: 00515861061 Page: 2 Date Filed: 05/13/2021

No. 20-10974

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. He also makes the related argument that his guilty plea was involuntary because he was not informed that his prior felony conviction was an element of the offense. He concedes that these issues are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve them for possible Supreme Court review. Agreeing that the issues are foreclosed, the Government has filed a motion for summary affirmance and, in the alternative, a motion for an extension of time to file a brief.

The parties are correct that Rodriguez-Caraveo’s arguments are 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). 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 as moot, and the judgment is AFFIRMED.