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
October 12, 2020
No. 20-10170 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
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.
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opinion should not be published and is not precedent except under the limited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
§ 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,
(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,
, 497 (5th Cir.
2014); United States v. Rojas-Luna,
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