USA v. Juan Recendis-Herrera


UNPUBLISHED OPINION FILED. [16-51436 Affirmed] Judge: JLW, Judge: JLD, Judge: LHS. Mandate pull date is 09/27/2017 for Appellant Juan Luis Recendis-Herrera; granting motion for summary affirmance filed by Appellee USA [8513216-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8513216-3] [16-51436]

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Case: 16-51436 Document: 00514143888 Page: 1 Date Filed: 09/06/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-51436 Summary Calendar United States Court of Appeals Fifth Circuit FILED September 6, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JUAN LUIS RECENDIS-HERRERA, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:16-CR-118-1 Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Juan Luis Recendis-Herrera pled guilty to illegal reentry into the United States and was sentenced within the advisory guidelines range to 60 months of imprisonment and three years of supervised release. In his only argument on appeal, he asserts that because the indictment did not allege that he had a prior felony conviction, his sentence exceeded the two-year statutory maximum sentence set forth in 8 U.S.C. § 1326(a) and violated his due process rights. He Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 16-51436 Document: 00514143888 Page: 2 Date Filed: 09/06/2017 No. 16-51436 concedes that his argument is foreclosed by Supreme Court precedent but states that he seeks to preserve it for possible future review. See AlmendarezTorres v. United States, 523 U.S. 224, 226 (1998). Recent decisions indicate that the Supreme Court may reconsider the issue. See Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (2013). The Government has filed a motion for summary affirmance, or alternatively, for an extension of time to file a brief. Summary affirmance is proper when, among other instances, “the position of one of the parties 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, 1162-63 (5th Cir. 1969). As Recendis-Herrera concedes, his due process argument is foreclosed by Almendarez-Torres. The Supreme Court’s subsequent decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne did not overrule AlmendarezTorres. See United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008); United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014). Accordingly, the Government’s motion for summary affirmance is GRANTED, and the judgment is AFFIRMED. The Government’s alternative motion for an extension of time to file a brief is DENIED. 2

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