United States v. Romero Torres ( 2023 )

Case: 22-10657 Document: 00516660772 Page: 1 Date Filed: 03/01/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10657
Summary Calendar FILED
____________ March 1, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Jose Guadalupe Romero Torres,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:22-CR-15-1
______________________________
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam: *
Jose Guadalupe Romero Torres appeals his conviction and 42-month
sentence for illegal reentry after having been previously removed. He argues
that it is a violation of the Sixth Amendment’s Notice Clause to treat a prior
conviction that increases the statutory maximum under 8 U.S.C. § 1326(b)
as a sentencing factor, rather than as an element of the offense. Romero
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10657 Document: 00516660772 Page: 2 Date Filed: 03/01/2023
No. 22-10657
Torres concedes that the argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998), but he wishes to preserve it for further
review. The Government has moved without opposition for summary
affirmance or, alternatively, for an extension of time to file its brief.
As the Government asserts and as Romero Torres concedes, the sole
issue raised on appeal is foreclosed by Almendarez-Torres. See United States
v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019); United States v. Wallace, 759
F.3d 486, 497 (5th Cir. 2014). Because the Government’s position “is clearly
right as a matter of law so that there can be no substantial question as to the
outcome of the case,” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162
(5th Cir. 1969), summary affirmance is proper.
Accordingly, the motion for summary affirmance is GRANTED, and
the judgment of the district court is AFFIRMED. The Government’s
alternative motion for an extension of time is DENIED.
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