United States v. Pena-Talamantes

Case: 23-10325 Document: 00516918775 Page: 1 Date Filed: 10/03/2023

United States Court of Appeals for the Fifth Circuit ____________

United States Court of Appeals Fifth Circuit No. 23-10325

Summary Calendar FILED ____________ October 3, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus

Pedro Pena-Talamantes,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:22-CR-326-1 ______________________________

Before Dennis, Engelhardt, and Wilson, Circuit Judges.

Per Curiam: *

Pedro Pena-Talamantes appeals his within-guidelines range sentence for illegal entry following deportation. See 8 U.S.C. § 1326(a) & (b)(1). The district court sentenced Pena-Talamantes to 18 months of imprisonment followed by three years of supervised release. Pena-Talamantes contends that his supervised release term violates Apprendi v. New Jersey, 530 U.S. 466 Case: 23-10325 Document: 00516918775 Page: 2 Date Filed: 10/03/2023

No. 23-10325

(2000), because it is greater than the one-year term permitted under § 1326(a) and is based on a fact—his prior conviction for a felony—that was neither pleaded in the indictment nor found by a jury beyond a reasonable doubt or admitted by him in pleading guilty. Pena-Talamantes concedes that this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and that he seeks to preserve it for possible Supreme Court review. The Government moves for summary affirmance, urging that Pena- Talamantes’s argument is foreclosed, or, alternatively, for an extension of time in which to file a merits brief.

The parties are correct that Pena-Talamantes’s argument is foreclosed by Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019); United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014). 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,” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), summary affirmance is proper. Accordingly, the Government’s motion for summary affirmance is GRANTED. The Government’s alternative motion for an extension of time is DENIED. The judgment is AFFIRMED.