United States v. Hernandez-Guevara

Case: 23-50903 Document: 50-1 Page: 1 Date Filed: 07/09/2024

United States Court of Appeals for the Fifth Circuit ____________

United States Court of Appeals Fifth Circuit No. 23-50903

Summary Calendar FILED ____________ July 9, 2024 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus

Bernardo Hernandez-Guevara,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 2:22-CR-73-1 ______________________________

Before King, Haynes, and Graves, Circuit Judges.

Per Curiam: *

Bernardo Hernandez-Guevara appeals the sentence imposed following his guilty plea conviction for illegal reentry after removal in violation of 8 U.S.C. § 1326. For the first time on appeal, Hernandez- Guevara challenges the application of the enhanced penalty range in § 1326(b) as unconstitutional because it permits a defendant to be sentenced Case: 23-50903 Document: 50-1 Page: 2 Date Filed: 07/09/2024

No. 23-50903 above the statutory maximum of § 1326(a) based on the fact of a prior conviction that was neither alleged in the indictment nor found by a jury beyond a reasonable doubt. He has filed an unopposed motion for summary disposition and a letter brief correctly conceding that the issue 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 raises the issue to preserve it for Supreme Court review.

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