USA v. Antonio Cauich-Gamboa
UNPUBLISHED OPINION FILED. [17-10096 Affirmed ] Judge: CDK , Judge: JWE , Judge: SAH Mandate issue date is 12/20/2017 for Appellant Antonio Cauich-Gamboa; granting motion for summary affirmance filed by Appellee USA [8560031-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8560031-3] [17-10096]
Date Filed: 11/28/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
November 28, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
ANTONIO CAUICH-GAMBOA, also known as Marco Antonio Arce Araico,
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-345-1
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
appeals the 30-month
sentence imposed following his guilty plea conviction for illegal reentry. He
argues that although 18 U.S.C. § 1326(a) and (b) set forth different statutory
maximum sentences based on criminal history, this factor is considered as a
sentencing factor rather than an element of the offense.
asserts that because his sentence exceeds the two-year statutory maximum of
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 11/28/2017
§ 1326(a), it violates due process. He concedes that his argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to
preserve the issue for possible Supreme Court review because, he argues,
subsequent Supreme Court decisions indicate that the Court may reconsider
In Almendarez-Torres, 523 U.S. at 239-47, the Supreme Court held that
for purposes of a statutory sentencing enhancement, a prior conviction is not a
fact that must be alleged in an indictment or found by a jury beyond a
This court has held that subsequent Supreme Court
decisions did not overrule Almendarez-Torres. See United States v. Wallace,
759 F.3d 486, 497 (5th Cir. 2014) (considering the effect of Alleyne v. United
States, 133 S. Ct. 2151 (2013)); United States v. Pineda-Arrellano, 492 F.3d
624, 625-26 (5th Cir. 2007) (considering the effect of Apprendi v. New Jersey,
530 U.S. 466 (2000)). Thus, Cauich-Gamboa’s argument is foreclosed.
Accordingly, 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, and the judgment of the district court is AFFIRMED.
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