United States v. Simental-Murillo

Case: 22-50983 Document: 00516704881 Page: 1 Date Filed: 04/07/2023

United States Court of Appeals for the Fifth Circuit

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United States Court of Appeals

Fifth Circuit

No. 22-50983

Summary Calendar FILED ____________ April 7, 2023

Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee, versus

Gabriel Simental-Murillo,

Defendant—Appellant.

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Appeal from the United States District Court for the Western District of Texas USDC No. 4:22-CR-505-1 ______________________________

Before Stewart, Duncan, and Wilson, Circuit Judges.

Per Curiam: *

Gabriel Simental-Murillo appeals his guilty plea conviction and sentence for illegal reentry after removal in violation of 8 U.S.C. § 1326(a) and (b)(2). He argues that the recidivism enhancement in § 1326(b) is unconstitutional because it permits a sentence above the otherwise- applicable statutory maximum established by § 1326(a) based on facts that

Case: 22-50983 Document: 00516704881 Page: 2 Date Filed: 04/07/2023

No. 22-50983 are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. Simental-Murillo acknowledges that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve it for possible Supreme Court review. Accordingly, he has filed an unopposed motion for summary disposition.

We have 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). Simental-Murillo is, therefore, correct that his argument is foreclosed. 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,” summary disposition is proper. Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Accordingly, Simental-Murillo’s motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED.