United States v. Rios-Galicia

Case: 21-40830 Document: 00516299468 Page: 1 Date Filed: 04/28/2022

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

Fifth Circuit FILED

No. 21-40830 April 28, 2022

Summary Calendar

Lyle W. Cayce

Clerk United States of America,

Plaintiff—Appellee, versus

Martin Rios-Galicia,

Defendant—Appellant.

Appeal from the United States District Court for the Southern District of Texas No. 5:20-CR-1516-1

Before Smith, Stewart, and Graves, Circuit Judges.

Per Curiam:*

Martin Rios-Galicia appeals his conviction and sentence for illegal reentry into the United States after deportation under 8 U.S.C. § 1326(a) and (b)(2). Moving for summary disposition of his appeal, he contends for the first time that the recidivism enhancement in § 1326(b) is unconstitutional

Case: 21-40830 Document: 00516299468 Page: 2 Date Filed: 04/28/2022

No. 21-40830 because it permits a sentence above the otherwise-applicable statutory maxi- mum established by § 1326(a) based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. While Rios- Galicia acknowledges this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), he nevertheless seeks to preserve it for possible Supreme Court review.

Subsequent 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, Rios-Galicia is correct that his argument is foreclosed. Because his position “is clearly right as a matter of law so that there can be no sub- stantial 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.