United States v. Marquez-Calzadilla ( 2023 )

Case: 22-50630 Document: 00516633824 Page: 1 Date Filed: 02/03/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50630
Summary Calendar FILED
____________ February 3, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Gilberto Marquez-Calzadilla,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:22-CR-99-1
______________________________
Before Davis, Smith, and Douglas, Circuit Judges.
Per Curiam: *
Gilberto Marquez-Calzadilla appeals his sentence for illegal reentry in
violation of 8 U.S.C. § 1326(a) and (b)(2). For the first time on appeal, he
contends that his sentence is unconstitutional because the district court
enhanced his sentence under § 1326(b) based on facts that were neither
alleged in the indictment nor found by a jury beyond a reasonable doubt.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50630 Document: 00516633824 Page: 2 Date Filed: 02/03/2023
No. 22-50630
While he acknowledges this argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998), he nevertheless seeks to preserve it for
possible Supreme Court review. As such, Marquez-Calzadilla has filed an
unopposed motion for summary disposition. See United State v. Pervis, 937
F.3d 546, 553-54 (5th Cir. 2019).
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). Thus, Marquez-Calzadilla is correct that his argument is
foreclosed, and summary disposition is appropriate. See Groendyke Transp.,
Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Marquez-Calzadilla’s motion is GRANTED, and the district court’s
judgment is AFFIRMED.
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