USA v. Hernandez-Guzman, No. 21-50353 (5th Cir. 2021)
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Case: 21-50353 Document: 00516096423 Page: 1 Date Filed: 11/17/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED November 17, 2021 No. 21-50353 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Gerardo Hernandez-Guzman, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 2:20-CR-186-1 Before Jolly, Willett, and Engelhardt, Circuit Judges. Per Curiam:* Gerardo Hernandez-Guzman pleaded guilty to illegal reentry into the United States. He appeals his sentence, arguing that the enhanced sentencing range in 8 U.S.C. § 1326(b) is unconstitutional because a prior conviction is an element of the offense that must be alleged in the indictment and found by a jury beyond a reasonable doubt. He concedes, though, that * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-50353 Document: 00516096423 Page: 2 Date Filed: 11/17/2021 No. 21-50353 this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). Still, he wishes to preserve it for further review. The Government has filed an unopposed motion for summary affirmance, agreeing that the issue is foreclosed by Almendarez-Torres. Alternately, the Government requests an extension of time to file its brief. We agree that Almendarez-Torres forecloses Hernandez-Guzman’s sole appellate argument. See 523 U.S. at 226–27; Apprendi v. New Jersey, 530 U.S. 466, 476, 489–90 (2000); United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Garza-Lopez, 410 F.3d 268, 275–76 (5th Cir. 2005). 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), the Government’s motion for summary affirmance is GRANTED, the Government’s alternative motion for an extension of time to file a brief is DENIED as moot, and the judgment of the district court is AFFIRMED. 2
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