United States v. Lux-Tum

Case: 22-50640 Document: 00516698784 Page: 1 Date Filed: 04/03/2023

United States Court of Appeals for the Fifth Circuit _____________

United States Court of Appeals Fifth Circuit No. 22-50640 consolidated with FILED No. 22-50641 April 3, 2023 _____________ Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee, versus

Miguel Lux-Tum,

Defendant—Appellant. ______________________________

Appeals from the United States District Court for the Western District of Texas USDC No. 4:21-CR-299-1

USDC No. 4:22-CR-83-1 ______________________________

Before Jones, Haynes, and Oldham, Circuit Judges.

Per Curiam: *

Miguel Lux-Tum appeals his conviction and sentence for reentry after deportation under 8 U.S.C. § 1326(a) and (b)(1). Lux-Tum argues that treating a prior felony or aggravated felony conviction that increases the Case: 22-50640 Document: 00516698784 Page: 2 Date Filed: 04/03/2023

No. 22-50640 c/w No. 22-50641 statutory maximum under § 1326(b) as a sentencing factor, rather than a separate element of the offense, violates the Constitution. While Lux-Tum’s 16-month term of imprisonment was within the otherwise applicable statutory maximum in § 1326(a), he complains that his three-year term of supervised release exceeds the one-year statutory maximum that applies without a § 1326(b) enhancement. See 18 U.S.C. § 3559(a), 3583(b). He has filed an unopposed motion for summary disposition and a letter brief explaining that he has raised the issue only to preserve it for further review and correctly conceding that his argument 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). Lux-Tum does not challenge or make any arguments regarding the consolidated appeal from his supervised release revocation proceeding.

Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Lux-Tum’s motion is GRANTED, and the judgment of the district court is AFFIRMED.