United States v. Sanchez-Herrera

Case: 22-51093 Document: 00516788695 Page: 1 Date Filed: 06/15/2023

United States Court of Appeals for the Fifth Circuit ____________

United States Court of Appeals Fifth Circuit No. 22-51093

Summary Calendar FILED ____________ June 15, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus

Ever Sanchez-Herrera,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 3:22-CR-1230-1 ______________________________

Before Davis, Duncan, and Engelhardt, Circuit Judges.

Per Curiam: *

Ever Sanchez-Herrera appeals his conviction and sentence for illegal reentry after removal in violation of 8 U.S.C. § 1326(a) and (b)(1). In his sole issue on appeal, Sanchez-Herrera contends that § 1326(b) is unconstitutional because it permits a sentence above the otherwise-applicable statutory Case: 22-51093 Document: 00516788695 Page: 2 Date Filed: 06/15/2023

No. 22-51093 maximum based on facts that were neither alleged in the indictment nor found by a jury beyond a reasonable doubt.

He has filed an unopposed motion for summary disposition and a letter brief explaining that he has raised this issue only to preserve it for further review and correctly conceding 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). Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Herrera-Sanchez’s motion is GRANTED, and the district court’s judgment is AFFIRMED.