United States v. Montilla-Tejeda

Case: 21-51010 Document: 00516260936 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. 21-51010

Summary Calendar Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee, versus

Ultimo Montilla,

Defendant—Appellant, consolidated with _____________

No. 21-51024 _____________

United States of America,

Plaintiff—Appellee, versus

Willie Montilla-Tejeda,

Defendant—Appellant.

Case: 21-51010 Document: 00516260936 Page: 2 Date Filed: 03/30/2022

No. 21-51010 c/w No. 21-51024

Appeals from the United States District Court for the Western District of Texas USDC No. 4:21-CR-644-1

USDC No. 4:21-CR-494-1

Before Jolly, Willett, and Engelhardt, Circuit Judges.

Per Curiam:*

Ultimo Montilla, also known as Willie Montilla-Tejeda, appeals his conviction and sentence for illegal reentry after removal under 8 U.S.C. § 1326(a) and (b)(2), along with the revocation of the term of supervised release he was serving at the time of the offense. He has not briefed, and has therefore abandoned, any challenge to the revocation of supervised release or his revocation sentence. See United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010).

For the first time on appeal, Montilla argues that § 1326(b) is unconstitutional because it permits a defendant to be sentenced above the statutory maximum under § 1326(a) based on the fact of a prior conviction that was not alleged in the indictment or found by a jury beyond a reasonable doubt. He has filed an unopposed motion for summary disposition and a letter brief correctly conceding that this issue 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). Montilla states that he has raised the issue only to preserve it for possible further review. Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Case: 21-51010 Document: 00516260936 Page: 3 Date Filed: 03/30/2022

No. 21-51010 c/w No. 21-51024

Cir. 1969), Montilla’s motion is GRANTED, and the district court’s judgments are AFFIRMED.