United States v. Gandara-Ortega

Case: 24-50172 Document: 43-1 Page: 1 Date Filed: 06/26/2024

United States Court of Appeals for the Fifth Circuit ____________

United States Court of Appeals Fifth Circuit No. 24-50172

Summary Calendar FILED ____________ June 26, 2024 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus

Victor Manuel Gandara-Ortega,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 3:23-CR-2263-1 ______________________________

Before Dennis, Wilson, and Ramirez, Circuit Judges.

Per Curiam: *

Victor Manuel Gandara-Ortega appeals his sentence of 15 months of imprisonment and three years of supervised release for illegally reentering the United States after removal, in violation of 8 U.S.C. § 1326(a) and (b). He argues that § 1326(b) is unconstitutional because it allows a sentence above the otherwise applicable two-year statutory maximum term of Case: 24-50172 Document: 43-1 Page: 2 Date Filed: 06/26/2024

No. 24-50172 imprisonment in § 1326(a) based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. He also argues that his three-year term of supervised release is unconstitutional for the same reasons, as it exceeds the one-year maximum that would apply under § 1326(a) and 18 U.S.C. §§ 3559 and 3583. However, he correctly concedes that his arguments are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and he raises them merely to preserve them for further review. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Gandara-Ortega has moved, without opposition, for summary disposition. Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Gandara-Ortega’s unopposed motion for summary disposition is GRANTED and the district court’s judgment is AFFIRMED.