United States v. Gonzales-Landeros

Case: 23-50631 Document: 00517054932 Page: 1 Date Filed: 02/02/2024

United States Court of Appeals for the Fifth Circuit ____________

United States Court of Appeals Fifth Circuit No. 23-50631

Summary Calendar FILED ____________ February 2, 2024 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus

Gabriel Gonzales-Landeros,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 4:23-CR-143-1 ______________________________

Before Jolly, Engelhardt, and Douglas, Circuit Judges.

Per Curiam: *

Gabriel Gonzales-Landeros appeals his conviction and sentence for illegal reentry under 8 U.S.C. § 1326(a) and (b)(2). Gonzales-Landeros argues for the first time on appeal 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: 23-50631 Document: 00517054932 Page: 2 Date Filed: 02/02/2024

No. 23-50631 facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. Although Gonzales-Landeros 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, and he 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, Gonzales-Landeros 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).

Accordingly, Gonzales-Landeros’s motion is GRANTED, and the judgment is AFFIRMED.