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United States v. Manriquez-Gutierrez ( 2023 )


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  • Case: 22-50791        Document: 00516666417             Page: 1      Date Filed: 03/06/2023
United States Court of Appeals
for the Fifth Circuit
_____________
United States Court of Appeals
Fifth Circuit
No. 22-50791
consolidated with                                   FILED
No. 22-50799                                March 6, 2023
Summary Calendar                             Lyle W. Cayce
_____________                                     Clerk
United States of America,
Plaintiff—Appellee,
versus
Jose Luis Manriquez-Gutierrez,
Defendant—Appellant.
______________________________
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:22-CR-106-1
USDC No. 4:22-CR-176-1
______________________________
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
Jose Luis Manriquez-Gutierrez appeals his conviction and sentence
for illegal entry into the United States after deportation under
    8 U.S.C. § 1326
    (a) and (b)(1).         He renews his argument that the recidivism
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50791       Document: 00516666417        Page: 2    Date Filed: 03/06/2023
22-50791
c/w No. 22-50799
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. While Manriquez-Gutierrez 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, Manriquez-Gutierrez has filed an unopposed motion for
summary disposition.
This court has held that 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, Manriquez-Gutierrez 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).
As Manriquez-Gutierrez raises no issue with respect to the revocation
of his supervised release, he has abandoned any challenge to the revocation
or revocation sentence. See Yohey v. Collins,
    985 F.2d 222
    , 224-25 (5th Cir.
1993).
Manriquez-Gutierrez’s motion is GRANTED, and the district
court’s judgment is AFFIRMED.
2