United States v. Macias-Torres ( 2023 )

Case: 22-50660 Document: 00516612574 Page: 1 Date Filed: 01/17/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50660
Summary Calendar FILED
____________ January 17, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Dylan Brando Ervey Macias-Torres,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:21-CR-1824-1
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
Dylan Brando Ervey Macias-Torres appeals his conviction and
sentence for illegal reentry into the United States under 8 U.S.C. § 1326(a)
and (b)(2). On appeal, he argues for the first time 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
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50660 Document: 00516612574 Page: 2 Date Filed: 01/17/2023
No. 22-50660
beyond a reasonable doubt. Macias-Torres acknowledges that this argument
is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
he seeks to preserve it for possible Supreme Court review. Accordingly, he
has filed an unopposed motion for summary disposition.
As Macias-Torres concedes, the sole issue raised on appeal is
foreclosed by Almendarez-Torres. See United States v. Pervis, 937 F.3d 546,
553-54 (5th Cir. 2019). Summary disposition is therefore appropriate. See
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, Macias-Torres’s motion for summary disposition is
GRANTED, and the judgment of the district court is AFFIRMED.
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