United States v. Garcia-Aleman

Case: 22-50909 Document: 00516783100 Page: 1 Date Filed: 06/12/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit FILED No. 22-50909 June 12, 2023 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee, versus

Alfredo Garcia-Aleman,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 4:22-CR-311-1 ______________________________

Before Wiener, Elrod, and Engelhardt, Circuit Judges.

Per Curiam: *

Alfredo Garcia-Aleman appeals his conviction and sentence for illegal reentry after removal, in violation of 8 U.S.C. § 1326(a) and (b)(2). Garcia- Aleman contends that § 1326(b) is unconstitutional because it permits a sentence above the otherwise-applicable statutory maximum based on facts that were neither alleged in the indictment nor found by a jury beyond a Case: 22-50909 Document: 00516783100 Page: 2 Date Filed: 06/12/2023

No. 22-50909 reasonable doubt. He correctly acknowledges that this issue 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). He nevertheless seeks to preserve the issue for further review and has filed an unopposed motion for summary disposition. Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Garcia-Aleman’s motion is GRANTED, and the district court’s judgment is AFFIRMED.