USA v. Federico Ortiz-Lopez
Filing
UNPUBLISHED OPINION FILED. [17-40045 Affirmed] Judge: TMR, Judge: ECP, Judge: JEG. Mandate pull date is 09/08/2017 for Appellant Federico Ortiz-Lopez; granting motion for summary affirmance filed by Appellee USA [8496129-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8496129-3] [17-40045]
Case: 17-40045
Document: 00514122268
Page: 1
Date Filed: 08/18/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-40045
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
August 18, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FEDERICO ORTIZ-LOPEZ, also known as Federico Ortiz,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:16-CR-1068-1
Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
Federico Ortiz-Lopez appeals the 37 month sentence imposed following
his conviction of being found in the United States without permission,
following removal. See 8 U.S.C. § 1326(a), (b). He contends that he was
improperly sentenced under § 1326(b) because the statute is unconstitutional
on its face. He also contends that the statute is unconstitutional as applied in
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40045
Document: 00514122268
Page: 2
Date Filed: 08/18/2017
No. 17-40045
his case because his prior conviction was not alleged in the indictment or
proved beyond a reasonable doubt.
Ortiz-Lopez
acknowledges
that
his
argument
is
foreclosed
by
Almendarez-Torres v. United States, 523 U.S. 224, 228, 235 (1998), which held
that convictions used to enhance a sentence under 8 U.S.C. § 1326(b) need not
be set forth in the indictment or proved beyond a reasonable doubt.
Accordingly, the Government’s motion for summary affirmance is GRANTED,
its alternative motion for an extension of time to file a brief is DENIED, and
the judgment of the district court is AFFIRMED.
2
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