United States v. Trevizo-Cortez

Case: 21-50640 Document: 00516199796 Page: 1 Date Filed: 02/11/2022

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

Fifth Circuit FILED

February 11, 2022

No. 21-50640 Lyle W. Cayce Summary Calendar Clerk

United States of America,

Plaintiff—Appellee, versus

Ignacio Trevizo-Cortez,

Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:20-CR-517-1

Before Higginbotham, Higginson, and Duncan, Circuit Judges.

Per Curiam:*

Ignacio Trevizo-Cortez appeals his conviction and sentence for reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). Trevizo-Cortez argues that treating a prior conviction that increases the statutory maximum under § 1326(b)(2) as a sentencing factor, rather than as

Case: 21-50640 Document: 00516199796 Page: 2 Date Filed: 02/11/2022

No. 21-50640 an element of the offense, violates the Constitution and rendered his guilty plea unknowing and involuntary. He correctly concedes that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he wishes to preserve it for further review. The Government has moved without opposition for summary affirmance or, alternatively, for an extension of time to file its brief.

As the Government asserts and as Trevizo-Cortez concedes, the sole issue raised on appeal is foreclosed by Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019); United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014). Because the Government’s position “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 (5th Cir. 1969), summary affirmance is proper.

Accordingly, the motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. The Government’s alternative motion for an extension of time is DENIED.