United States v. Cante-Dondiego

Case: 21-51069 Document: 00516426512 Page: 1 Date Filed: 08/10/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 10, 2022 No. 21-51069 Lyle W. Cayce Summary Calendar Clerk

United States of America, Plaintiff—Appellee, versus Jose Rene Cante-Dondiego, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 3:21-CR-895-1

Before Higginbotham, Graves, and Ho, Circuit Judges.

Per Curiam:* Jose Rene Cante-Dondiego appeals his conviction and sentence for illegal reentry after deportation under 8 U.S.C. § 1326(a) and (b)(1). Cante- Dondiego argues that treating a prior felony or aggravated felony conviction that increases the statutory maximum under § 1326(b) as a sentencing factor, Case: 21-51069 Document: 00516426512 Page: 2 Date Filed: 08/10/2022

No. 21-51069 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), Cante-Dondiego’s motion is GRANTED, and the judgment of the district court is AFFIRMED.