United States v. Villalobos-Franco

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 3, 2022
• Docket: 22-50209
• Status: Unpublished

Opinion

Case: 22-50208 Document: 00516532233 Page: 1 Date Filed: 11/03/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit No. 22-50208 consolidated with FILED No. 22-50209 November 3, 2022 Summary Calendar Lyle W. Cayce Clerk

United States of America,

Plaintiff—Appellee,

versus

Arturo Villalobos-Franco,

Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:18-CR-307-1 USDC No. 4:21-CR-848-1

Before Smith, Wiener, and Elrod, Circuit Judges. Per Curiam:*

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 22-50208 Document: 00516532233 Page: 2 Date Filed: 11/03/2022

No. 22-50208 c/w No. 22-50209

Defendant-Appellant Arturo Villalobos-Franco appeals his conviction and sentence for illegal reentry after removal in violation of 8 U.S.C. § 1326(a) and (b)(2), consolidated here with the revocation of a term of supervised release for a prior offense. He challenges the constitutionality of 8 U.S.C. § 1326(b), which increases the maximum punishment based on a prior felony or aggravated felony conviction. Villalobos-Franco moves for summary disposition of his own appeal, conceding that the only issue before us is foreclosed by Supreme Court precedent in Al-mendarez-Torres v. United States, 523 U.S. 224 (1998). He raises this issue only to preserve it for further review if case law should develop in his favor. See United States v. Garza-De La Cruz, 16 F.4th 1213, 1214 (5th Cir. 2021). Villalobos-Franco’s motion is GRANTED, and the district court’s judgment is AFFIRMED.