United States v. Rafael Ayala-Solorio

Case: 20-10170      Document: 00515597649          Page: 1     Date Filed: 10/12/2020

              United States Court of Appeals
                   for the Fifth Circuit                                  United States Court of Appeals
                                                                                   Fifth Circuit

                                                                          October 12, 2020
                                   No. 20-10170                             Lyle W. Cayce
                                 Summary Calendar                                Clerk

   United States of America,



   Rafael Ayala-Solorio,


                   Appeal from the United States District Court
                       for the Northern District of Texas
                            USDC No. 4:19-CR-265-1

   Before Clement, Higginson, and Engelhardt, Circuit Judges.
   Per Curiam:*
          Rafael Ayala-Solorio appeals his sentence of 120 months of
   imprisonment and three years of supervised release, which the district court
   imposed following his guilty plea conviction for illegal reentry, in violation of
   8 U.S.C. § 1326. He argues that the recidivism enhancement set forth in

            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10170      Document: 00515597649              Page: 2   Date Filed: 10/12/2020

                                        No. 20-10170

   § 1326(b) is an element of the offense that must be alleged in the indictment
   and proven beyond a reasonable doubt to a jury. He therefore argues that his
   guilty plea is invalid because he was not advised of an element of the offense
   and that his sentence is illegal because the application of § 1326(b) increased
   the statutory maximum terms of imprisonment and supervised release. He
   concedes that the issue is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224

(1998), but he seeks to preserve the issue for further review.
   The Government moves for summary affirmance, asserting that Ayala-
   Solorio’s argument is foreclosed. Alternatively, the Government seeks an
   extension of time to file a brief.
          The parties are correct that Ayala-Solorio’s claim is foreclosed by
   Almendarez-Torres. See United States v. Wallace, 

759 F.3d 486

, 497 (5th Cir.
   2014); United States v. Rojas-Luna, 

522 F.3d 502

, 505-06 (5th Cir. 2008).
   Accordingly, summary affirmance is GRANTED, see Groendyke Transp.,
   Inc. v. Davis, 

406 F.2d 1158

, 1162 (5th Cir. 1969), 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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