United States v. Castelan-Saucedo

Case: 22-50968 Document: 00516697129 Page: 1 Date Filed: 03/31/2023

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

No. 22-50968

FILED March 31, 2023 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee, versus

Osvaldo Castelan-Saucedo,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 4:22-CR-457-1 ______________________________

Before Smith, Southwick, and Douglas, Circuit Judges.

Per Curiam: *

Osvaldo Castelan-Saucedo appeals his sentence for illegal reentry under 8 U.S.C. § 1326(a) and (b)(2), maintaining that § 1326(b) is unconsti- tutional because it permits a sentence above the otherwise-applicable statu- tory maximum based on facts not charged or proved beyond a reasonable doubt. Castelan-Saucedo has filed an unopposed motion for summary affirmance, conceding that his argument is foreclosed by Almendarez-Torres Case: 22-50968 Document: 00516697129 Page: 2 Date Filed: 03/31/2023

No. 22-50968

v. United States, 523 U.S. 224 (1998), and explaining that he seeks only to preserve it for further review.

Because Castelan-Saucedo is correct that his argument is foreclosed, see United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019), summary affirmance is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, the motion is GRANTED, and the judgment is AFFIRMED.