United States v. Chairez-Avila ( 2023 )

Case: 22-50624 Document: 00516635723 Page: 1 Date Filed: 02/06/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-50624
FILED
February 6, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Mario Rodolfo Chairez-Avila,
Defendant—Appellant,
consolidated with
_____________
No. 22-50629
_____________
United States of America,
Plaintiff—Appellee,
versus
Mario Chairez-Avila,
Defendant—Appellant.
Case: 22-50624 Document: 00516635723 Page: 2 Date Filed: 02/06/2023
No. 22-50624
c/w No. 22-50629
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 4:19-CR-31-1, 4:22-CR-87-1
Before Stewart, Dennis, and Willett, Circuit Judges.
Per Curiam: *
Mario Rodolfo Chairez-Avila appeals his conviction and sentence for
illegal reentry into the United States under 8 U.S.C. § 1326(a) and (b)(2), as
well as the judgment revoking his term of supervised release for a prior
offense. The latter challenge is unbriefed and thus abandoned. See United
States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010).
For the first time on appeal, Chairez-Avila contends that the
recidivism enhancement in § 1326(b) is unconstitutional because it permits a
sentence above the otherwise 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. Although Chairez-Avila acknowledges
that 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 and has filed an unopposed motion for summary disposition.
Because Chairez-Avila is correct that his argument is foreclosed, see
United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019), summary
disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969). Accordingly, Chairez-Avila’s motion is GRANTED,
and the district court’s judgments are AFFIRMED.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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