United States v. Valdivia-Gonzalez ( 2023 )

Case: 22-50626 Document: 00516613332 Page: 1 Date Filed: 01/17/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50626
Summary Calendar FILED
____________ January 17, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Miguel Valdivia-Gonzalez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:22-CR-38-1
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
Miguel Valdivia-Gonzalez appeals his conviction and sentence for
illegal reentry after removal in violation of 8 U.S.C. § 1326(a) and (b)(2).
In his sole issue on appeal, Valdivia-Gonzalez contends that § 1326(b)
is unconstitutional because it permits a sentence above the otherwise-
applicable statutory maximum based on facts that were neither alleged in the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50626 Document: 00516613332 Page: 2 Date Filed: 01/17/2023
No. 22-50626
indictment nor found by a jury beyond a reasonable doubt. He has filed an
unopposed motion for summary disposition and a letter brief explaining that
he has raised this issue only to preserve it for further review and conceding
that this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224 (1998). See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019).
Because summary disposition is appropriate, see Groendyke Transp.,
Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Valdivia-Gonzalez’s motion
is GRANTED, and the district court’s judgment is AFFIRMED.
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