United States v. Avila-Mendez

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 13, 2023
• Docket: 23-50291
• Status: Unpublished

Opinion

Case: 23-50291 Document: 00516931184 Page: 1 Date Filed: 10/13/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-50291 Summary Calendar FILED ____________ October 13, 2023 Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee,

versus

Leoncio Fernando Avila-Mendez,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 2:21-CR-749-1 ______________________________

Before Wiener, Stewart, and Douglas, Circuit Judges. Per Curiam: * Defendant-Appellant Leoncio Fernando Avila-Mendez appeals his conviction and sentence for illegal reentry into the United States after removal. For the first time on appeal, Avila-Mendez contends that the recidivism enhancement in 8 U.S.C. § 1326(b) is unconstitutional because it permits a sentence above the otherwise applicable statutory maximum

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-50291 Document: 00516931184 Page: 2 Date Filed: 10/13/2023

No. 23-50291

established by § 1326(a) based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. Although Avila- Mendez acknowledges that this contention 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 has filed an unopposed motion for summary disposition. See United States v. Garza-De La Cruz, 16 F.4th 1213, 1214 (5th Cir. 2021) (Costa & Ho, JJ., concurring). We have 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). Accordingly, Avila-Mendez 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). IT IS ORDERED that Avila-Mendez’s motion is GRANTED, and the district court’s judgment is AFFIRMED.