United States v. Ortiz-Juarez

Case: 23-50670 Document: 43-1 Page: 1 Date Filed: 02/27/2024

United States Court of Appeals for the Fifth Circuit ____________

United States Court of Appeals Fifth Circuit No. 23-50670

Summary Calendar FILED ____________ February 27, 2024 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus

Jorge Ortiz-Juarez,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 2:21-CR-928-1 ______________________________

Before Wiener, Stewart, and Douglas, Circuit Judges.

Per Curiam: *

Jorge Ortiz-Juarez appeals his conviction and sentence for illegal reentry under 8 U.S.C. § 1326(a) and (b)(2). Ortiz-Juarez 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 facts that Case: 23-50670 Document: 43-1 Page: 2 Date Filed: 02/27/2024

No. 23-50670 are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. Although Ortiz-Juarez 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, Ortiz-Juarez 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, Ortiz-Juarez’s motion is GRANTED, and the judgment is AFFIRMED.