United States v. Robles-Perez

Opinion

Case: 23-50145 Document: 00516921496 Page: 1 Date Filed: 10/05/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-50145 Summary Calendar FILED ____________ October 5, 2023 Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee,

versus

Ismael Robles-Perez,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 3:22-CR-1119-1 ______________________________

Before Willett, Duncan, and Wilson, Circuit Judges. Per Curiam: * Ismael Robles-Perez appeals his sentence for illegal reentry under 8 U.S.C. § 1326(a) and (b)(1), arguing that § 1326(b) is unconstitutional because it permits a sentence above the otherwise-applicable statutory maximum based on facts not charged or proved beyond a reasonable doubt. He has filed an unopposed motion for summary disposition, conceding this

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-50145 Document: 00516921496 Page: 2 Date Filed: 10/05/2023

No. 23-50145

argument is foreclosed by Almendarez-Torres v. United States, 1 but explaining that he raises it in order to preserve the argument for further review. Because Robles-Perez is correct in conceding that his argument is foreclosed, 2 summary disposition is appropriate. 3 Accordingly, his motion is GRANTED, and the judgment of the district court is AFFIRMED.

_____________________ 1 523 U.S. 224 (1998). 2 United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019) (explaining that because the Supreme Court has preserved Almendarez, it still controls the issue). 3 See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).