United States v. Burciaga-Herrera

Case: 23-50790 Document: 40-1 Page: 1 Date Filed: 05/07/2024

United States Court of Appeals for the Fifth Circuit ____________

United States Court of Appeals Fifth Circuit No. 23-50790

Summary Calendar FILED ____________ May 7, 2024 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus

Benjamin Burciaga-Herrera,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 4:23-CR-276-1 ______________________________

Before Davis, Willett, and Oldham, Circuit Judges.

Per Curiam: *

Benjamin Burciaga-Herrera appeals the term of imprisonment imposed following his guilty-plea conviction for illegal reentry after removal. He argues that 8 U.S.C. § 1326(b) is unconstitutional because it allows a sentence above the otherwise applicable statutory maximum established by Case: 23-50790 Document: 40-1 Page: 2 Date Filed: 05/07/2024

No. 23-50790

§ 1326(a) based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt.

Burciaga-Herrera 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, 523 U.S. 224 (1998). See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). He explains that he has raised the issue to preserve it for possible further review.

Accordingly, because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Burciaga-Herrera’s motion is GRANTED, and the district court’s judgment is AFFIRMED.