USA v. Federico Ortiz-Lopez


UNPUBLISHED OPINION FILED.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]

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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