United States v. Molina Villatoro

Case: 24-50636 Document: 50-1 Page: 1 Date Filed: 01/10/2025

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________

FILED January 10, 2025 No. 24-50636

Summary Calendar Lyle W. Cayce ____________ Clerk United States of America,

Plaintiff—Appellee, versus

Degny Oshmarlin Molina Villatoro,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 2:23-CR-2531-1 ______________________________

Before King, Southwick, and Engelhardt, Circuit Judges.

Per Curiam:*

Degny Oshmarlin Molina Villatoro appeals his sentence for illegal reentry into the United States after having been removed, in violation of 8 U.S.C. § 1326. He contends that his sentence exceeds the statutory maximum and is therefore unconstitutional because it was enhanced based on facts that were neither alleged in the indictment nor found by a jury Case: 24-50636 Document: 50-1 Page: 2 Date Filed: 01/10/2025

No. 24-50636 beyond a reasonable doubt. However, he acknowledges that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and merely raises this issue to preserve it for further review. The Government has moved without opposition for summary affirmance, or, alternatively, for an extension of time to file a brief.

Because summary affirmance is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the Government’s motion for summary affirmance is GRANTED, the Government’s alternative motion for an extension of time to file a brief is DENIED, and the district court’s judgment is AFFIRMED.