USA v. Armando Ramirez-Hernandez


UNPUBLISHED OPINION FILED. [17-10326 Affirmed] Judge: EHJ, Judge: PRO, Judge: CH. Mandate issue date is 11/20/2017 for Appellant Armando Ramirez-Hernandez; granting motion for summary affirmance filed by Appellee USA [8525730-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8525730-3] [17-10326]

Download PDF
Case: 17-10326 Document: 00514214513 Page: 1 Date Filed: 10/27/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-10326 Summary Calendar FILED October 27, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ARMANDO RAMIREZ-HERNANDEZ, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 6:16-CR-24-1 Before JONES, OWEN, and HAYNES, Circuit Judges. PER CURIAM: * Armando Ramirez-Hernandez pleaded guilty to illegal reentry and was sentenced above the advisory guidelines range to 40 months of imprisonment and three years of supervised release. He maintains that his guilty plea was involuntary because he was not admonished that the prior felony provision of 8 U.S.C. § 1326(b)(1) was an element of the offense that the Government had to prove beyond a reasonable doubt. Likewise, he argues that the enhancement 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 17-10326 Document: 00514214513 Page: 2 Date Filed: 10/27/2017 No. 17-10326 provisions of § 1326(b) are unconstitutional because they treat past convictions as sentencing factors rather than elements of the offense; he contends that his indictment did not allege that he had a prior conviction, and, thus, he could be sentenced to no more than two years in prison pursuant to § 1326(a). RamirezHernandez concedes that his arguments are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he asserts that he seeks to preserve his claims for possible future review. The Government has moved 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 Ramirez-Hernandez concedes, his appellate claims are foreclosed by Almendarez-Torres. The Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 131 S. Ct. 2151 (2013), did not overrule Almendarez-Torres. 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). Thus, 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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?