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United States v. Rodriguez-Gill ( 2022 )


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  • Case: 22-50627   Document: 00516584991   Page: 1   Date Filed: 12/20/2022
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50627
Summary Calendar                        FILED
____________                    December 20, 2022
Lyle W. Cayce
United States of America,                                      Clerk
Plaintiff—Appellee,
versus
Trinidad Rodriguez-Gil,
Defendant—Appellant,
consolidated with
_____________
No. 22-50628
_____________
United States of America,
Plaintiff -Appellee,
versus
Trinidad Rodriguez-Gill,
Defendant—Appellant.
Case: 22-50627         Document: 00516584991             Page: 2      Date Filed: 12/20/2022
No. 22-50627 c/w
No. 22-50628
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC Nos. 4:22-CR-95-1, 4:19-CR-336-3
______________________________
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
Trinidad Rodriguez-Gil appeals his conviction and sentence for illegal
reentry after removal, as well as the judgment revoking his term of supervised
release for a prior offense. He has not briefed, and has therefore abandoned,
any challenge to the revocation of supervised release or his revocation
sentence. See Yohey v. Collins,
    985 F.2d 222
    , 224-25 (5th Cir. 1993).
For the first time on appeal, Rodriguez-Gil argues that his sentence
exceeds the statutory maximum and is therefore unconstitutional because the
district court enhanced his sentence under
    8 U.S.C. § 1326
    (b) based on facts
that were neither alleged in the indictment nor found by a jury beyond a
reasonable doubt. 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.                    In addition,
Rodriguez-Gil has filed an unopposed motion for summary disposition.
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, Rodriguez-Gil 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).
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
2
Case: 22-50627   Document: 00516584991       Page: 3   Date Filed: 12/20/2022
No. 22-50627 c/w
No. 22-50628
Rodriguez-Gil’s motion for summary disposition is GRANTED, and
the district court’s judgments are AFFIRMED.
3