United States v. Guerrero-Lazaro

Case: 23-50243 Document: 00516892037 Page: 1 Date Filed: 09/12/2023

United States Court of Appeals for the Fifth Circuit

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United States Court of Appeals

Fifth Circuit No. 23-50243 Summary Calendar FILED ____________ September 12, 2023

Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee, versus

Juan Antonio Guerrero-Lazaro,

Defendant—Appellant.

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Appeal from the United States District Court for the Western District of Texas

USDC No. 4:22-CR-747-1 ______________________________

Before Davis, Ho, and Wilson, Circuit Judges.

Per Curiam: *

Juan Antonio Guerrero-Lazaro appeals his conviction and sentence for illegal re-entry into the United States under 8 U.S.C. § 1326(a) and (b)(1). On appeal, he renews his objection 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

Case: 23-50243 Document: 00516892037 Page: 2 Date Filed: 09/12/2023

No. 23-50243 facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. While Guerrero-Lazaro 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, Guerrero-Lazaro 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, Guerrero-Lazaro 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).

Guerrero-Lazaro’s motion is GRANTED, and the district court’s judgment is AFFIRMED.