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United States v. Thomas ( 2023 )


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  • Case: 22-50366     Document: 00516617579         Page: 1     Date Filed: 01/20/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-50366
FILED
January 20, 2023
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Noe Jose Thomas,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-1028-1
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
Noe Jose Thomas appeals his guilty plea conviction and sentence for
illegal reentry into the United States under
    8 U.S.C. § 1326
    (a) and (b)(1). On
appeal, he argues that the recidivism enhancement in § 1326(b) is
unconstitutional because it permits a sentence above the otherwise-
*
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opinion should not be published and is not precedent except under the limited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: 22-50366      Document: 00516617579         Page: 2   Date Filed: 01/20/2023
No. 22-50366
applicable statutory maximum established by § 1326(a), based on facts that
are neither alleged in the indictment nor found by a jury beyond a reasonable
doubt.     Thomas 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.
We have held that subsequent Supreme Court decisions such as
Alleyne v. United States,
    570 U.S. 99
     (2013), and Apprendi v. New Jersey,
    530 U.S. 466
     (2000), did not overrule Almendarez-Torres. See United States
v. Pervis,
    937 F.3d 546
    , 553-54 (5th Cir. 2019). Thomas is correct that his
argument is foreclosed. 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,” summary disposition is proper. Groendyke Transp., Inc. v. Davis,
    406 F.2d 1158
    , 1162 (5th Cir. 1969).
Accordingly, Thomas’s motion for summary disposition is
GRANTED, and the judgment of the district court is AFFIRMED.
2