United States v. Montoya-De La Cruz

Case: 21-50850 Document: 00516360935 Page: 1 Date Filed: 06/17/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED June 17, 2022 No. 21-50850

Lyle W. Cayce Summary Calendar Clerk

United States of America,

Plaintiff—Appellee, versus

Ramiro Montoya-De La Cruz,

Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-336-1

Before Higginbotham, Higginson, and Duncan, Circuit Judges.

Per Curiam:*

Ramiro Montoya-De La Cruz appeals his conviction and sentence under 8 U.S.C. § 1326(a) and (b)(1). For the first time on appeal, he contends that it violates the Constitution to treat a prior conviction that increases the statutory maximum under § 1326(b) as a sentencing factor, Case: 21-50850 Document: 00516360935 Page: 2 Date Filed: 06/17/2022

No. 21-50850 rather than as an element of the offense. He correctly concedes that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he wishes to preserve it for further review. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda-Arrellano, 492 F.3d 624, 625–26 (5th Cir. 2007).

Because the only issue is foreclosed and “there can be no substantial question as to the outcome of the case,” the unopposed motion for summary disposition filed by Montoya-De La Cruz is GRANTED. Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). The judgment of the district court is AFFIRMED.