United States v. Hernandez-Cordova

Case: 22-50937 Document: 00516758640 Page: 1 Date Filed: 05/22/2023

United States Court of Appeals for the Fifth Circuit ____________

United States Court of Appeals Fifth Circuit No. 22-50937

Summary Calendar FILED ____________ May 22, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus

Fernando Hernandez-Cordova,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 7:22-CR-114-1 ______________________________

Before Higginbotham, Graves, and Ho, Circuit Judges.

Per Curiam: *

Fernando Hernandez-Cordova appeals the sentence imposed after his guilty plea conviction for illegal reentry subsequent to removal, pursuant to 8 U.S.C. § 1326(a) and (b)(1). Hernandez-Cordova contends, for the first time on appeal, that it violates the Constitution to treat a prior conviction that increases the statutory maximum under § 1326(b) as a sentencing factor, Case: 22-50937 Document: 00516758640 Page: 2 Date Filed: 05/22/2023

No. 22-50937 rather than as an element of the offense. Hernandez-Cordova concedes that this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve the issue for future review. In addition, he has filed an unopposed motion for summary disposition.

As Hernandez-Cordova concedes, the sole issue raised on appeal is foreclosed by Almendarez-Torres. 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. Accordingly, Hernandez-Cordova’s motion is GRANTED, and the judgment of the district court is AFFIRMED.