United States v. Osorio-Granados

Case: 22-50355 Document: 00516616232 Page: 1 Date Filed: 01/19/2023

United States Court of Appeals for the Fifth Circuit

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United States Court of Appeals

Fifth Circuit

No. 22-50355

Summary Calendar FILED ____________ January 19, 2023

Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee, versus

Genaro Osorio-Granados,

Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-971-1

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Before Wiener, Elrod, and Engelhardt, Circuit Judges.

Per Curiam: *

Genaro Osorio-Granados appeals his conviction and sentence for illegal reentry after removal pursuant to 8 U.S.C. § 1326(a) and (b)(2). He contends that treating a prior felony or aggravated felony conviction that increases the statutory maximum sentence under § 1326(b) as a sentencing factor, rather than a separate element of the offense, is unconstitutional. He has filed an unopposed motion for summary disposition and a letter brief in

Case: 22-50355 Document: 00516616232 Page: 2 Date Filed: 01/19/2023

No. 22-50355 which he concedes that his claim is foreclosed and asserts that he has raised the issue only to preserve it for further review.

As Osorio-Granados concedes, the sole issue that he raises on appeal 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); United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014). Because his position “is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case,” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), summary disposition is proper.

Therefore, the motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED.