United States v. Cervantes-Merlos

Case: 23-50188 Document: 00516840546 Page: 1 Date Filed: 07/31/2023

United States Court of Appeals for the Fifth Circuit

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United States Court of Appeals

Fifth Circuit

No. 23-50188

Summary Calendar FILED ____________ July 31, 2023

Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee, versus

Juan Luis Cervantes-Merlos,

Defendant—Appellant.

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Appeal from the United States District Court for the Western District of Texas USDC No. 2:21-CR-2177-1 ______________________________

Before Elrod, Oldham, and Wilson, Circuit Judges.

Per Curiam: *

Juan Luis Cervantes-Merlos appeals his conviction and sentence for illegal re-entry into the United States under 8 U.S.C. § 1326(a) and (b)(2). For the first time on appeal, he argues that the recidivism enhancement in § 1326(b) is unconstitutional because it permits a sentence above the otherwise-applicable statutory maximum established by § 1326(a), based on facts that are neither alleged in the indictment nor found by a jury beyond a

Case: 23-50188 Document: 00516840546 Page: 2 Date Filed: 07/31/2023

No. 23-50188 reasonable doubt. His two-year term of imprisonment does not exceed the maximum in § 1326(a), but his three-year term of supervised release is only authorized by § 1326(b), by virtue of 18 U.S.C. §§ 3559(a)(3) and 3583(b)(2). Cf. §§ 3559(a)(5), 3583(b)(3) (setting a one-year maximum for an offense punishable under § 1326(a)).

While Cervantes-Merlos acknowledges this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), he nevertheless seeks to preserve it for possible Supreme Court review. In addition, Cervantes-Merlos has filed an unopposed motion for summary disposition.

This court has held that subsequent Supreme Court decisions such as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), did not overrule Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Thus, Cervantes-Merlos is correct that his argument is foreclosed, and summary disposition is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Cervantes-Merlos’s motion is GRANTED, and the district court’s judgment is AFFIRMED.