United States v. Perez-Mendoza ( 2023 )

Case: 22-10423 Document: 00516612942 Page: 1 Date Filed: 01/17/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10423
Summary Calendar FILED
____________ January 17, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Hugo Perez-Mendoza,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CR-312-1
______________________________
Before Davis, Smith, and Douglas, Circuit Judges.
Per Curiam: *
Hugo Perez-Mendoza appeals his sentence for his guilty plea
conviction of illegal reentry after removal in violation of 8 U.S.C. § 1326.
Renewing an argument made before the district court, Perez-Mendoza
challenges the application of the enhanced penalty range in § 1326(b) as
unconstitutional because it permits a defendant to be sentenced above the
statutory maximum of § 1326(a) based on the fact of a prior conviction that
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10423 Document: 00516612942 Page: 2 Date Filed: 01/17/2023
No. 22-10423
was not alleged in the indictment or found by a jury beyond a reasonable
doubt. As he correctly concedes, 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). He raises the issue to preserve it for
Supreme Court review. The Government has filed an unopposed motion for
summary affirmance agreeing that the issue is foreclosed and, in the
alternative, requesting an extension of time to file a brief.
Because summary affirmance is appropriate, see Groendyke Transp.,
Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the Government’s motion
is GRANTED, and the district court’s judgment is AFFIRMED. The
Government’s alternative motion for an extension of time to file a brief is
DENIED.
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