United States v. Encarnacion-Pascual ( 2023 )

Case: 22-50729 Document: 00516618482 Page: 1 Date Filed: 01/20/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50729
Summary Calendar FILED
____________ January 20, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Trinidad Walter Encarnacion-Pascual,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:22-CR-142-1
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam: *
Trinidad Walter Encarnacion-Pascual appeals his conviction and
sentence for illegal reentry after removal in violation of 8 U.S.C. § 1326(a)
and (b)(2). He contends that the enhancement of his sentence pursuant to
§ 1326(b) was unconstitutional because the fact of his prior conviction, which
increased his statutory maximum, was treated as a sentencing factor, rather
than as an element of the offense. He has filed an unopposed motion for
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50729 Document: 00516618482 Page: 2 Date Filed: 01/20/2023
No. 22-50729
summary disposition and a letter brief explaining that he has raised this issue
only to preserve it for further review and conceding correctly 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), Encarnacion-Pascual’s motion is
GRANTED, and the district court’s judgment is AFFIRMED.
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