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UNPUBLISHED OPINION FILED.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]
Date Filed: 09/06/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
September 6, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
JUAN LUIS RECENDIS-HERRERA,
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 09/06/2017
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.
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