USA v. Luis Ortega-Ortiz

Filing

UNPUBLISHED OPINION FILED. [17-10309 Affirmed] Judge: JLW, Judge: JLD, Judge: LHS. Mandate issue date is 11/15/2017 for Appellant Luis Ortega-Ortiz; granting motion for summary affirmance filed by Appellee USA [8549382-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8549382-3] [17-10309]

Case: 17-10309

Document: 00514207950

Page: 1

Date Filed: 10/24/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-10309
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
October 24, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LUIS ORTEGA-ORTIZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-210-1
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *

Luis Ortega-Ortiz appeals the 27-month sentence imposed following his
guilty plea conviction for illegal reentry. He argues that he was convicted of
an offense under 8 U.S.C. § 1326(a), and not under subsection (b), because the
indictment did not allege that he was previously removed subsequent to a prior
conviction, and he did not admit to such a conviction when he entered his guilty
plea. Accordingly, he argues that his sentence is unconstitutional because it

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10309

Document: 00514207950

Page: 2

Date Filed: 10/24/2017

No. 17-10309
exceeds the statutory maximum sentence of two years under Section 1326(a).
He concedes that this issue 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 this issue.
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
reasonable doubt.

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, Ortega-Ortiz’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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