United States v. Oliva-Santos

Case: 21-51073 Document: 00516273979 Page: 1 Date Filed: 04/08/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED April 8, 2022 No. 21-51073 Lyle W. Cayce Summary Calendar Clerk

United States of America,

Plaintiff—Appellee, versus

Rodolfo Oliva-Santos,

Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-427-1

Before Jolly, Willett, and Engelhardt, Circuit Judges.

Per Curiam:*

Rodolfo Oliva-Santos appeals his conviction and sentence for illegal reentry after removal in violation of 8 U.S.C. § 1326(a) and (b)(2). He contends that the enhancement of his illegal reentry sentence pursuant to § 1326(b) was unconstitutional because the fact of his prior conviction was Case: 21-51073 Document: 00516273979 Page: 2 Date Filed: 04/08/2022

No. 21-51073 not charged in his indictment or proved to a jury beyond a reasonable doubt. He has filed an unopposed motion for summary disposition and a letter brief explaining that he has raised this issue only to preserve it for further review and conceding correctly 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). Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Oliva- Santos’s motion is GRANTED, and the district court’s judgment is AFFIRMED.