United States v. Gonzalez-Solano ( 2023 )

Case: 22-50369 Document: 00516647925 Page: 1 Date Filed: 02/16/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-50369
FILED
February 16, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Geovanni Gonzalez-Solano,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-1035-1
______________________________
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam: *
Geovanni Gonzalez-Solano appeals his conviction and sentence for
illegal reentry after removal under 8 U.S.C. §§ 1326(a) and (b)(1). For the
first time on appeal, Gonzalez-Solano argues that § 1326(b) is
unconstitutional because it permits a defendant to be sentenced above the
statutory maximum under § 1326(a) based on the fact of a prior conviction
that was not alleged in the indictment or found by a jury beyond a reasonable
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50369 Document: 00516647925 Page: 2 Date Filed: 02/16/2023
No. 22-50369
doubt. He has filed an unopposed motion for summary disposition and
a letter brief correctly conceding 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). Gonzalez-Solano states that he has
raised the issue only to preserve it for possible further review. Because
summary disposition is appropriate under these circumstances, see Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Gonzalez-Solano’s
motion is GRANTED, and the district court’s judgment is AFFIRMED.
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