United States v. Hernandez-Chavez

Case: 22-51040 Document: 00516809727 Page: 1 Date Filed: 07/05/2023

United States Court of Appeals for the Fifth Circuit ____________

United States Court of Appeals Fifth Circuit No. 22-51040

Summary Calendar FILED ____________ July 5, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus

Carlos Esau Hernandez-Chavez,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 1:21-CR-52-1 ______________________________

Before Dennis, Elrod, and Willett, Circuit Judges.

Per Curiam: *

Carlos Esau Hernandez-Chavez appeals his conviction and sentence for illegal reentry after removal, in violation of 8 U.S.C. § 1326(a) and (b)(2). Hernandez-Chavez 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 Case: 22-51040 Document: 00516809727 Page: 2 Date Filed: 07/05/2023

No. 22-51040 beyond a 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), Hernandez-Chavez’s motion is GRANTED, and the district court’s judgment is AFFIRMED.