United States v. Renteria-Herrera

Case: 22-50258 Document: 00516474299 Page: 1 Date Filed: 09/16/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 16, 2022 No. 22-50258 Lyle W. Cayce Summary Calendar Clerk

United States of America, Plaintiff—Appellee, versus Adrian Renteria-Herrera, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-919-1

Before Smith, Dennis, and Southwick, Circuit Judges.

Per Curiam:* Adrian Renteria-Herrera appeals his sentence for illegal reentry into the United States after having been ordered removed, in violation of 8 U.S.C. § 1326(a) and (b)(1). He contends that § 1326(b) is unconstitutional because it allows a sentence above the otherwise applicable statutory maximum based Case: 22-50258 Document: 00516474299 Page: 2 Date Filed: 09/16/2022

No. 22-50258 on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. Although his 21-month term of imprisonment was within the maximum in § 1326(a), his three-year term of supervised release was above the maximum for that provision and was imposed instead by virtue of § 1326(b)(1) based on a prior felony conviction. See 18 U.S.C. § 3559(a), 3583(b). Renteria-Herrera moves for summary disposition, correctly conceding that his sole issue is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), and explaining that he merely seeks to preserve the issue for further review. 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), Renteria-Herrera’s motion is GRANTED, and the judgment of the district court is AFFIRMED.