United States v. Perchez-Hernandez

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 18, 2023
• Docket: 22-50876
• Status: Unpublished

Opinion

Case: 22-50875 Document: 00516716178 Page: 1 Date Filed: 04/18/2023

United States Court of Appeals for the Fifth Circuit _____________ United States Court of Appeals Fifth Circuit No. 22-50875 consolidated with FILED No. 22-50876 April 18, 2023 _____________ Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus

Genaro Perchez-Hernandez,

Defendant—Appellant. ______________________________

Appeals from the United States District Court for the Western District of Texas USDC Nos. 4:22-CR-315-1, 4:19-CR-441-2 ______________________________

Before King, Higginson, and Willett, Circuit Judges. Per Curiam: * Genaro Perchez-Hernandez appeals his conviction and sentence for illegal reentry into the United States under 8 U.S.C. § 1326(a) and (b)(2), as well as the judgment revoking his term of supervised release for a prior

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-50875 Document: 00516716178 Page: 2 Date Filed: 04/18/2023

No. 22-50875 c/w No. 22-50876

offense. The latter challenge is unbriefed and thus abandoned. See United States v. Reagan, 596 F.3d 251, 254–55 (5th Cir. 2010). On appeal, Perchez-Hernandez contends that the recidivism enhancement in § 1326(b) is unconstitutional because it permits a sentence above the otherwise applicable statutory maximum established by § 1326(a) based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. Although Perchez-Hernandez acknowledges that this argument 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 affirmance. Because Perchez-Hernandez is correct that his argument is foreclosed, see United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019), summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, Perchez-Hernandez’s motion is GRANTED, and the district court’s judgments are AFFIRMED.