United States v. Garcia-Archaga

Case: 22-10615 Document: 00516578571 Page: 1 Date Filed: 12/14/2022

United States Court of Appeals for the Fifth Circuit ____________

United States Court of Appeals Fifth Circuit No. 22-10615

Summary Calendar FILED ____________ December 14, 2022 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus

Kevin Ariel Garcia-Archaga,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:21-CR-241-1 ______________________________

Before Stewart, Duncan, and Wilson, Circuit Judges.

Per Curiam: *

Kevin Ariel Garcia-Archaga appeals the sentence imposed on his guilty plea conviction of illegal reentry after removal from the United States in violation of 8 U.S.C. § 1326. Renewing an argument made before the district court, Garcia-Archaga challenges the application of the enhanced penalty range in § 1326(b) as unconstitutional because it permits a defendant to be sentenced above the statutory maximum of § 1326(a) based on the fact Case: 22-10615 Document: 00516578571 Page: 2 Date Filed: 12/14/2022

No. 22-10615 of a prior conviction that was not alleged in the indictment or found by a jury beyond a reasonable doubt. As he correctly concedes, this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). He raises the issue to preserve it for Supreme Court review. The Government has filed an unopposed motion for summary affirmance agreeing that the issue is foreclosed and, in the alternative, requesting an extension of time to file a brief.

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