United States v. Duarte-Munoz

Case: 21-51114 Document: 00516304628 Page: 1 Date Filed: 05/03/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 21-51114 May 3, 2022 Summary Calendar Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee, versus

Victor Manuel Duarte-Munoz,

Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-359-1

Before Clement, Haynes, and Higginson, Circuit Judges.

Per Curiam:*

Victor Manuel Duarte-Munoz appeals his conviction and sentence for illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2), contending that the enhancement of his sentence pursuant to § 1326(b) is unconstitutional because the fact of a prior conviction was not charged and proved beyond a Case: 21-51114 Document: 00516304628 Page: 2 Date Filed: 05/03/2022

No. 21-51114 reasonable doubt. He has filed an unopposed motion for summary disposition and a letter brief explaining that he raises this issue only to preserve it for further review and correctly conceding that it 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), Duarte-Munoz’s motion is GRANTED, and the judgment of the district court is AFFIRMED.