Case: 23-50866    RESTRICTED Document: 50-1            Page: 1     Date Filed: 09/09/2024




              United States Court of Appeals
                   for the Fifth Circuit                                 United States Court of Appeals
                                                                                  Fifth Circuit
                                   ____________
                                                                                FILED
                                                                         September 9, 2024
                                    No. 23-50866
                                   ____________                            Lyle W. Cayce
                                                                                Clerk
     United States of America,

                                                                 Plaintiff—Appellee,

                                         versus

     Elauterio Aguilar-Torres,

                                              Defendant—Appellant.
                     ______________________________

                     Appeal from the United States District Court
                          for the Western District of Texas
                              USDC No. 4:23-CR-272-1
                     ______________________________

     Before Jones, Willett, and Engelhardt, Circuit Judges.
     Per Curiam:
            Elauterio Aguilar-Torres appeals his conviction and sentence for
     illegal reentry after removal. He argues that 

(b) is
     unconstitutional 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.
            Aguilar-Torres has filed an unopposed motion for summary
     disposition and a letter brief correctly conceding that the only issue he raises
     is foreclosed by Almendarez-Torres v. United States, 

 (1998). See
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                                            No. 23-50866


     United States v. Pervis, 

, 553–54 (5th Cir. 2019). He explains that
     he has raised the issue to preserve it for possible further review. However,
     unlike our usual cases1 concerning preserved challenges to Almendarez-
     Torres, the defendant-appellant, rather than the Government, has moved to
     summarily dispose of his own case. Where the parties “affirmatively desire
     the same result”—here, both the Government and Aguilar-Torres agree
     affirming the district court is the appropriate outcome—there is no case or
     controversy for our court to adjudicate. Bullard v. Estelle, 

 (5th Cir. 1983) (citation omitted). This unusual procedural posture,
     wherein the appellant affirmatively acts to procure a result which defeats his
     interest, fully consistent with his opponent’s position, leaves nothing for this
     Court to decide. Given the lack of adversity between the parties, and where
     the defendant-appellant has moved for summary affirmance against his own


             _____________________
             1
                When controlling jurisprudence forecloses the defendant’s argument, the
     defendant usually embarks on an appellate journey that preserves the argument and
     adversity. The defendant notices an appeal and offers his argument for reversal while
     acknowledging existing precedent. This quest for reversal forces his opponent—the
     Government—to respond. In so doing, the defendant engages in the battle Article III
     requires. Issue is joined.
              The Government frequently responds with a motion for summary affirmance. And
     where the defendant-appellant concedes that the argument is presently foreclosed under
     controlling jurisprudence, he declines, as he must, to oppose. But because this saga
     preserves the requisite continuing controversy between two adverse parties, we have
     frequently granted the Government’s responsive, unopposed motions for summary
     affirmance. See, e.g., United States v. Zeno, No. 22-30112, 

, at *1 (5th Cir.
     Mar. 9, 2023); United States v. Salazar, No. 21-50547, 

, at *1 (5th Cir. Jan.
     11, 2022).
              Here, the defendant-appellant sought an impermissible shortcut. He appealed and
     donned the posture of his opponent, asking this court for summary affirmance of his own
     conviction. In procedurally joining forces with the Government, he (undoubtedly
     inadvertently) destroyed adversity, and with it, our jurisdiction. Article III does not permit
     us to grant a fast pass to the Supreme Court where true adversity no longer exists.




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                                      No. 23-50866


     interest, we must dismiss for lack of jurisdiction. See Pool v. City of Houston,
     

 (5th Cir. 2023).
            Accordingly, Aguilar-Torres’s motion for summary affirmance is
     moot, and his appeal is DISMISSED.




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                                            No. 23-50866


     Don R. Willett, Circuit Judge, dissenting:
             Without soliciting input from the parties on the issue, the majority
     stakes out a position contrary to our many opinions (albeit unpublished and
     thus nonprecedential) and dismisses this case for lack of jurisdiction.1 The
     reason, it says, is that the defendant (as opposed to the Government) has
     moved for summary affirmance of the district court’s judgment. Both parties
     “affirmatively seek the same result,” the majority explains, and therefore
     “the lack of adversity” means that there is no Article III case or controversy
     before us.2
             This reasoning has some intuitive appeal, but it is unclear to me, at
     least without further briefing, that it is correct. We have previously resolved
     cases, and thus saw no apparent “lack of adversity,” when the parties
     disagreed on the merits of the underlying claims but nonetheless agreed that
     the district court erred and should be reversed.3 If no justiciability issue arises
     in that context, I am doubtful it arises in the mirror-image case, in which the
     parties disagree on the merits but agree that the district court should be
     affirmed.4 It is thus distinctly possible, in my view, that the majority’s

             1
               See, e.g., United States v. Lopez-Cristobal, No. 22-50985, 

, at *1
     (5th Cir. Apr. 6, 2023); United States v. Rosales-Sanchez, No. 21-50598, 

,
     at *1 (5th Cir. Dec. 8, 2021); United States v. Jimenez-Maria, 

, at *1 (5th
     Cir. May 14, 2024).
             2
                 Ante, at 2.
             3
              See, e.g., Greinstein v. Granite Serv. Int’l, 

, at **1–2 (5th Cir.
     Aug. 13, 2024) (resolving a case in which the “district court accepted neither party’s
     argument” and “[b]oth parties agree[d] that [one of our recent decisions] resolves the key
     question” on appeal and that the district court should be reversed); United States v. Kelly,
     

 (5th Cir. 2022) (noting that “both parties agree” that the district court
     erred and declining the Government’s invitation to affirm on different grounds).
             4
              That the parties here disagree on the merits is a plausible distinction between this
     case and Pool v. City of Houston, 

 (5th Cir. 2023) (noting that the parties
     “agree[d] on a constitutional question”).



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                                       No. 23-50866


     dismissal is premised on a reductive conception of Article III adversity and
     hinges on immaterial distinctions.
            Indeed, I fail to see a meaningful difference between (1) conceding that
     an argument is foreclosed by controlling precedent, and (2) acquiescing in
     the only judgment that we can provide based on that concession. A party who
     has conceded that his argument cannot win is a party who has already
     accepted the fate of an adverse legal judgment. And if a party has already
     accepted that inevitability, it is a small, if not inconsequential, step for that
     party to move for that judgment himself. More concretely, I fail to see the
     difference between a defendant such as Aguilar-Torres moving for summary
     affirmance on the one hand and the Government moving for summary
     affirmance unopposed on the other. In either case, both parties accept the same
     judgment. No adversity detected.
            In a lengthy footnote, the majority acknowledges that we have not
     previously dismissed cases for lack of jurisdiction when the Government
     moves for summary affirmance unopposed,5 even though those cases could
     just as equally be described to “lack the adversity” necessary for Article III
     adjudication. What separates those cases from this case, the majority
     explains, is that the defendants in those cases at least “offer[] [their]
     argument for reversal while acknowledging existing precedent,” thus
     engaging in the “battle Article III requires.”6 In other words, if a party offers
     a token, pro forma argument while contemporaneously waving the white flag
     of defeat, a “battle” purportedly ensues and our jurisdiction is restored. I am




            5
                Ante, at 2 n.1.
            6
                

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                                            No. 23-50866


     skeptical. “The Constitution deals with substance, not shadows,”7 and any
     “battle” of the majority’s definition is one that is at war with itself.
             As I see it, the real Article III problem in this case is not party
     adversity, but judicial hierarchy. Aguilar-Torres forthrightly concedes, as he
     must, that his argument is foreclosed by the Supreme Court’s decision in
     Almendarez-Torres v. United States.8 And as an intermediate court of appeals,
     we are of course powerless to overrule it.9 In the larger context, then, the
     parties have a genuine dispute; they just agree that we are the wrong court to
     decide it. An argument to us that Supreme Court precedent should be
     overruled is therefore not only futile but misdirected.
             That reality, to my mind, hardly has jurisdictional significance. Parties
     who appeal to us will often concede that their argument is foreclosed by either
     circuit or Supreme Court precedent. And when those arguments are
     presented to a three-judge panel, as the one is here, we simply acknowledge
     the argument and reject it as a matter of stare decisis. We do not dismiss it
     for lack of jurisdiction.10 It is difficult to imagine that no Article III case or
     controversy exists for the entire lifespan of a lawsuit until it reaches our en
     banc court or the Supreme Court. Subject-matter jurisdiction must exist



             7
               Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 

 (2023) (quoting Cummings v. Missouri, 

 (1867)).
             8
                 

 (1998).
             9
                See Bryan A. Garner, et al., The Law of Judicial Precedent 27
     (2016) (“Federal and state courts are absolutely bound by vertical precedent—those
     delivered by higher courts within the same jurisdiction.”); see also Hutto v. Davis, 

 (1982) (per curiam) (“[U]nless we wish anarchy to prevail within the federal
     judicial system, a precedent of this Court must be followed by the lower federal courts[.]”).
             10
               See, e.g., Braidwood Mgmt., Inc. v. Becerra, 

 (5th Cir. 2024)
     (noting that the plaintiffs acknowledge that their argument is foreclosed by circuit
     precedent and rejected it as a matter of stare decisis).



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                                              No. 23-50866


     “[a]t all stages of litigation,”11 and I cannot help but think that the majority’s
     holding casts that elemental proposition into doubt.
             This is all to say that while I am far from certain that the majority’s
     disposition is correct, I am also not solidly cemented into the contrary view.
     At bottom, I am afraid that the issue is more complicated than we probably
     appreciate. There are other instances in which parties agree on the ultimate
     outcome of a dispute but over which we and the Supreme Court nevertheless
     recognize jurisdiction. The leading casebook on our jurisdiction notes a few
     examples, such as consent decrees and appeals in which the Solicitor General
     confesses error in the judgment below.12 It is not clear to me, at least at this
     juncture, whether the parties’ agreement in this case is of similar kind. But I
     would think that uncertainty would warrant, at a minimum, asking the parties
     what they think, lest we force an error of our own making. Query, too,
     whether there is a “lack of adversity”—and thus no justiciable dispute—
     when no party briefs or contests the issue on which the majority now disposes
     of this appeal.13 Sua sponte decisionmaking by definition has no adversity.
                                                * * *
             At the same time, I recognize that it is entirely possible that, even if I
     am right about all the foregoing, the court’s dismissal for lack of
     jurisdiction today may have no discernible effect on what Aguilar-Torres
     really seeks: Supreme Court review. Whether we dismiss for lack of
     jurisdiction or affirm as a matter of stare decisis could be, in reality, of no
     practical consequence for the parties or the Supreme Court. Either way,
     Aguilar-Torres can file his
             11
                  Uzuegbunam v. Preczewski, 

 (2021).
             12
            See Richard H. Fallon, et al., Hart & Wechsler’s The
     Federal Courts and the Federal System 99 (7th ed. 2015).
             13
               Cf. United States v. Sineneng-Smith, 

 (2020) (“In our adversarial
     system of adjudication, we follow the principle of party presentation.”).



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                                           No. 23-50866


     petition for certiorari, and the Supreme Court can grant it—or not.
     Nevertheless, I worry that an uninformed, and potentially incorrect, sua
     sponte assessment of our jurisdiction can have ripple effects far beyond this
     routine case. Federal courts have played fast and loose with the word
     “jurisdiction” before, and our jurisprudence has not improved because of
     it.14 I simply hope that this case will not be counted among the many others
     that have applied “the term ‘jurisdiction’ in a ‘profligate’ manner.”15




             14
                See, e.g., Steel Co. v. Citizens for a Better Envt., 

 (1998)
     (“‘Jurisdiction,’ it has been observed, ‘is a word of many, too many, meanings.’” (quoting
     United States v. Vannes, 

, 663 n.2 (C.A.D.C. 1996)); Abraham Watkins Nichols
     Aziz & Stogner v. Festeryga, __ F.4th __, __, 

, at * (5th Cir. July 25,
     2024) (reluctantly following a prior panel decision that called the waiver doctrine
     “jurisdictional,” despite the many “erroneous premises” that holding rested on).
             15
               Harrow v. Dep’t of Def., 

, 489 n.1 (2024) (quoting Arbaugh v. Y&H
     Corp., 

 (2006)).



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