Case: 22-50623 Document: 00516591500 Page: 1 Date Filed: 12/28/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

No. 22-50623 FILED December 28, 2022 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Jose Angel Bonilla-Pineda, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:22-CR-89-1

Before Higginbotham, Graves, and Ho, Circuit Judges.

Per Curiam:* Jose Angel Bonilla-Pineda appeals his conviction and sentence for illegal reentry into the United States under 8 U.S.C. § 1326(a) and (b)(1).

For the first time on appeal, Bonilla-Pineda contends that the recidivism enhancement in § 1326(b) is unconstitutional because it permits a sentence above the otherwise-applicable statutory maximum established by § 1326(a),

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-50623 Document: 00516591500 Page: 2 Date Filed: 12/28/2022

No. 22-50623

based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. While Bonilla-Pineda acknowledges this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), he nevertheless seeks to preserve it for possible Supreme Court review. In addition, Bonilla-Pineda has filed an unopposed motion for summary disposition.

This court has held that subsequent Supreme Court decisions such as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), did not overrule Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Thus, Bonilla-Pineda is correct that his argument is foreclosed, and summary disposition is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Bonilla-Pineda’s motion is GRANTED, and the district court’s judgment is AFFIRMED.