USA v. Javier Ramirez-Tovanche


UNPUBLISHED OPINION FILED.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]

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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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 2

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