United States v. Gamez

Case: 23-50083 Document: 00516823321 Page: 1 Date Filed: 07/17/2023

United States Court of Appeals for the Fifth Circuit ____________

United States Court of Appeals Fifth Circuit No. 23-50083

Summary Calendar FILED ____________ July 17, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus

Adolph Gamez, Jr.,

Defendant—Appellant, consolidated with _____________

No. 23-50084 _____________

United States of America,

Plaintiff—Appellee, versus

Leonel Fajardo-Ruiz,

Defendant—Appellant.

Case: 23-50083 Document: 00516823321 Page: 2 Date Filed: 07/17/2023 No. 23-50083 c/w No. 23-50084 ______________________________

Appeals from the United States District Court for the Western District of Texas USDC Nos. 4:22-CR-667-1, 4:22-CR-650-1 ______________________________

Before Higginbotham, Stewart, and Southwick, Circuit Judges.

Per Curiam: *

Leonel Fajardo-Ruiz 1 appeals his conviction and sentence for illegal reentry after removal under 8 U.S.C. § 1326(a) and (b)(2), as well as the order revoking a term of supervised release he was serving for a prior offense. He has not briefed, and has thus waived, any challenge to the revocation of supervised release or to his revocation sentence. See United States v. Reagan, 596 F.3d 251, 254–55 (5th Cir. 2010). In his sole issue on appeal, Fajardo- Ruiz contends that Section 1326(b) is unconstitutional because it allows a sentence above the otherwise applicable statutory maximum based on facts that are 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 conceding correctly 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), Fajardo-Ruiz’s motion is GRANTED, and the district court’s judgments are AFFIRMED.