United States v. Ramirez-Ortiz

Case: 21-51118 Document: 00516420530 Page: 1 Date Filed: 08/04/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 21-51118 August 4, 2022 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Oswaldo Omar Ramirez-Ortiz, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-622-1

Before Jones, Haynes, and Oldham, Circuit Judges.

Per Curiam:* Oswaldo Omar Ramirez-Ortiz appeals his conviction and sentence for illegal reentry after deportation under 8 U.S.C. § 1326(a) and (b)(2).

Ramirez-Ortiz argues that treating a prior felony or aggravated felony conviction that increases the statutory maximum under § 1326(b) as a Case: 21-51118 Document: 00516420530 Page: 2 Date Filed: 08/04/2022

No. 21-51118 sentencing factor, rather than a separate element of the offense, violates the Constitution. He has filed an unopposed motion for summary disposition and a letter brief explaining that he has raised the issue only to preserve it for further review and correctly conceding that his argument 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), Ramirez-Ortiz’s motion is GRANTED, and the judgment of the district court is AFFIRMED.