USA v. Javier Ramirez-Tovanche

Filing

UNPUBLISHED OPINION FILED. [17-50346 Affirmed] Judge: EGJ, Judge: PRO, Judge: CH. Mandate issue date is 12/28/2017 for Appellant Javier Ramirez-Tovanche; granting motion for summary affirmance filed by Appellee USA [8603013-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8603013-3] [17-50346]

Case: 17-50346

Document: 00514263459

Page: 1

Date Filed: 12/06/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-50346
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
December 6, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAVIER RAMIREZ-TOVANCHE,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:15-CR-1230-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *

Javier Ramirez-Tovanche appeals the 37-month within-guidelines
sentence imposed following his guilty plea conviction for illegal reentry. He
argues that his sentence violates due process because it exceeds the statutory
maximum sentence of 8 U.S.C. § 1326(a). He concedes that the issue whether
his eligibility for a sentencing enhancement under § 1326(b) must be alleged
in the indictment and proved to a jury is foreclosed by Almendarez-Torres v.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50346

Document: 00514263459

Page: 2

Date Filed: 12/06/2017

No. 17-50346
United States, 523 U.S. 224 (1998). However, 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, 570 U.S. 99 (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, Ramirez-Tovanche’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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