United States v. Andres-Tomas

Case: 21-51140 Document: 00516280136 Page: 1 Date Filed: 04/14/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED April 14, 2022 No. 21-51140

Lyle W. Cayce Summary Calendar Clerk

United States of America,

Plaintiff—Appellee, versus

Miguel Andres-Tomas,

Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-627-1

Before Smith, Stewart, and Graves, Circuit Judges.

Per Curiam:*

Miguel Andres-Tomas appeals his conviction for illegal reentry into the United States and his sentence of 21 months of imprisonment and three years of supervised release. He argues that 8 U.S.C. § 1326(b) is unconstitutional because it permits the increase of a sentence beyond the Case: 21-51140 Document: 00516280136 Page: 2 Date Filed: 04/14/2022

No. 21-51140 otherwise-applicable statutory maximum based on facts that are neither charged in the indictment nor found by a jury beyond a reasonable doubt. He concedes that this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve the issue for future review and has filed an unopposed motion for summary disposition.

As Andres-Tomas concedes, the issue he raises is foreclosed by Almendarez-Torres. 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), Andres-Tomas’s motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED.