United States v. Moncada-Aguirre

Case: 22-50388 Document: 00516489002 Page: 1 Date Filed: 09/29/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 29, 2022 No. 22-50388 Lyle W. Cayce Summary Calendar Clerk

United States of America, Plaintiff—Appellee, versus Martin Robert Moncada-Aguirre, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 1:22-CR-22-1

Before Jones, Haynes, and Oldham, Circuit Judges.

Per Curiam:* Martin Robert Moncada-Aguirre appeals his conviction and sentence for illegal reentry after removal, in violation of 8 U.S.C. § 1326(a) and (b)(1).

Moncada-Aguirre contends that § 1326(b) is unconstitutional because it permits a sentence above the otherwise-applicable statutory maximum based Case: 22-50388 Document: 00516489002 Page: 2 Date Filed: 09/29/2022

No. 22-50388 on facts that were neither alleged in the indictment nor found by a jury beyond a reasonable doubt. He acknowledges that this issue 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). He nevertheless seeks to preserve the issue for further review and has filed an unopposed motion for summary disposition. Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Moncada-Aguirre’s motion is GRANTED, and the district court’s judgment is AFFIRMED.