United States v. Cortez-Garcia

Case: 23-10349 Document: 00516917218 Page: 1 Date Filed: 10/03/2023

United States Court of Appeals for the Fifth Circuit ____________

United States Court of Appeals Fifth Circuit No. 23-10349

Summary Calendar FILED ____________ October 3, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus

Gilberto Salvador Cortez-Garcia,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:22-CR-328-1 ______________________________

Before Jones, Southwick, and Ho, Circuit Judges.

Per Curiam: *

Gilberto Salvador Cortez-Garcia appeals his sentence for illegal reentry into the United States after being removed, in violation of 8 U.S.C. § 1326(a) and (b)(1). He argues that 8 U.S.C. § 1326(b) is unconstitutional Case: 23-10349 Document: 00516917218 Page: 2 Date Filed: 10/03/2023

No. 23-10349 because it allows 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 reasonable doubt. However, he correctly concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and he raises this issue merely to preserve it for further review. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). The Government has moved, without opposition, for summary affirmance, or in the alternative, for an extension of time to file a brief on the merits.

Because summary affirmance is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the Government’s motion for summary affirmance is GRANTED, the Government’s alternative motion for an extension of time to file a brief is DENIED, and the district court’s judgment is AFFIRMED.