United States v. Contreras-Zamarripa

Case: 21-50974 Document: 00516206899 Page: 1 Date Filed: 02/17/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED February 17, 2022 No. 21-50974

Lyle W. Cayce Summary Calendar Clerk

United States of America,

Plaintiff—Appellee, versus

Oscar Contreras-Zamarripa,

Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-478-1

Before Smith, Stewart, and Graves, Circuit Judges.

Per Curiam:*

Oscar Contreras-Zamarripa appeals his conviction and sentence for illegal reentry into the United States pursuant to 8 U.S.C. § 1326(a) and (b)(1). For the first time on appeal, Contreras-Zamarripa argues that treating a prior conviction that increases the statutory maximum under § 1326(b) as a Case: 21-50974 Document: 00516206899 Page: 2 Date Filed: 02/17/2022

No. 21-50974 sentencing factor, rather than as an element of the offense, violates the Constitution. He has filed an unopposed motion for summary disposition and a letter brief explaining that he has raised the issue only to preserve it for further review and conceding correctly that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Contreras-Zamarripa’s motion is GRANTED, and the judgment of the district court is AFFIRMED.