United States v. Molina-Rivas

Case: 21-51035 Document: 00516248922 Page: 1 Date Filed: 03/22/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED March 22, 2022 No. 21-51035

Lyle W. Cayce Summary Calendar

Clerk

United States of America,

Plaintiff—Appellee, versus

Luis Antonio Molina-Rivas,

Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-453-1

Before Davis, Jones, and Elrod, Circuit Judges.

Per Curiam:*

Luis Antonio Molina-Rivas appeals his conviction and sentence for illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2). For the first time on appeal, Molina-Rivas argues that § 1326(b) is unconstitutional because it allows for a sentence above the otherwise Case: 21-51035 Document: 00516248922 Page: 2 Date Filed: 03/22/2022

No. 21-51035 applicable statutory maximum based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. 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 it 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), Molina-Rivas’s motion is GRANTED, and the judgment of the district court is AFFIRMED.