United States v. Reyes-Lopez

Case: 21-11122 Document: 00516259470 Page: 1 Date Filed: 03/30/2022

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

Fifth Circuit FILED

March 30, 2022

No. 21-11122

Lyle W. Cayce Summary Calendar Clerk

United States of America,

Plaintiff—Appellee, versus

Isidoro Reyes-Lopez,

Defendant—Appellant.

Appeal from the United States District Court for the Northern District of Texas No. 4:21-CR-73-1

Before Smith, Stewart, and Graves, Circuit Judges.

Per Curiam:*

Isidoro Reyes-Lopez appeals his conviction and sentence for illegal reentry after deportation under 8 U.S.C. § 1326(a) and (b)(1). He contends that the recidivism enhancement in § 1326(b) is unconstitutional because it permits a sentence above the otherwise-applicable statutory maximum estab-

Case: 21-11122 Document: 00516259470 Page: 2 Date Filed: 03/30/2022

No. 21-11122 lished by § 1326(a) based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. Reyes-Lopez acknowledges that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve it for possible Supreme Court review. The government moves without opposition for summary affirmance or, alternatively, for an extension of time to file its brief.

Supreme Court decisions such as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), did not overrule Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019). Thus, Reyes-Lopez is correct that his argument is foreclosed. 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,” summary affirmance is appropriate. Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Accordingly, the motion for summary affirmance is GRANTED, and the judgment is AFFIRMED. The government’s alternative motion for an extension is DENIED.