USA v. Dennis Rosales-Alvarado


UNPUBLISHED OPINION FILED. [17-50107 Affirmed ] Judge: WED , Judge: EBC , Judge: GJC Mandate pull date is 10/20/2017 for Appellant Dennis Armando Rosales-Alvarado; granting motion for summary affirmance filed by Appellee USA [8531414-2]; denying as unnecessary motion to extend time to file appellee's brief filed by Appellee USA [8531414-3] [17-50107]

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Case: 17-50107 Document: 00514176676 Page: 1 Date Filed: 09/29/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-50107 Summary Calendar United States Court of Appeals Fifth Circuit FILED September 29, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. DENNIS ARMANDO ROSALES-ALVARADO, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:16-CR-211-1 Before DAVIS, CLEMENT, and COSTA, Circuit Judges. PER CURIAM: * Dennis Armando Rosales-Alvarado pleaded guilty to illegal reentry into the United States and was sentenced above the advisory guidelines range to 52 months of imprisonment and three years of supervised release. In his only argument on appeal, he asserts that because the indictment did not allege that he had a prior felony conviction, his sentence exceeded the two-year statutory maximum sentence set forth in 8 U.S.C. § 1326(a) and violated his due process 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 17-50107 Document: 00514176676 Page: 2 Date Filed: 09/29/2017 No. 17-50107 rights. He concedes that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but states that he seeks to preserve it for possible future review because recent decisions indicate that the Supreme Court may reconsider the issue. See Alleyne v. United States, 133 S. Ct. 2151 (2013). The Government has filed a motion for summary affirmance. 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 Rosales-Alvarado concedes, his due process argument is foreclosed by Almendarez-Torres. The Supreme Court’s subsequent decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne did not overrule AlmendarezTorres. 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). Accordingly, the Government’s motion for summary affirmance is GRANTED, and the judgment is AFFIRMED. 2

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