United States v. Osorio-Granados ( 2023 )

Case: 22-50355 Document: 00516616232 Page: 1 Date Filed: 01/19/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50355
Summary Calendar FILED
____________ January 19, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Genaro Osorio-Granados,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-971-1
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam: *
Genaro Osorio-Granados appeals his conviction and sentence for
illegal reentry after removal pursuant to 8 U.S.C. § 1326(a) and (b)(2). He
contends that treating a prior felony or aggravated felony conviction that
increases the statutory maximum sentence under § 1326(b) as a sentencing
factor, rather than a separate element of the offense, is unconstitutional. He
has filed an unopposed motion for summary disposition and a letter brief in
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50355 Document: 00516616232 Page: 2 Date Filed: 01/19/2023
No. 22-50355
which he concedes that his claim is foreclosed and asserts that he has raised
the issue only to preserve it for further review.
As Osorio-Granados concedes, the sole issue that he raises on appeal
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); United States v.
Wallace, 759 F.3d 486, 497 (5th Cir. 2014). Because his position “is clearly
right as a matter of law so that there can be no substantial question as to the
outcome of the case,” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162
(5th Cir. 1969), summary disposition is proper.
Therefore, the motion for summary disposition is GRANTED, and
the judgment of the district court is AFFIRMED.
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