United States v. Venzor-Ortega ( 2022 )

Case: 21-51197 Document: 00516361287 Page: 1 Date Filed: 06/17/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 17, 2022
No. 21-51197 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Bernardino Adrian Venzor-Ortega,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-685-1
Before Jones, Elrod, and Higginson, Circuit Judges.
Per Curiam:*
Bernardino Adrian Venzor-Ortega appeals his sentence of 24 months
of imprisonment and three years of supervised release for his guilty plea
conviction of illegal reentry after removal from the United States, in violation
of 8 U.S.C. § 1326(a).
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-51197 Document: 00516361287 Page: 2 Date Filed: 06/17/2022
No. 21-51197
For the first time on appeal, he challenges the district court’s
application of the enhanced penalty in 8 U.S.C. § 1326(b) as unconstitutional
because it permits a defendant to be sentenced above the statutory maximum
of § 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 doubt. Although Venzor-
Ortega’s 24-month prison sentence is within the otherwise applicable
statutory maximum in § 1326(a), the application of § 1326(b) allowed the
district court to sentence him to three years of supervised release, above the
one-year maximum for a § 1326(a) offense. See 18 U.S.C. §§ 3559(a),
3583(b).
However, he correctly concedes that the argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998). See, e.g., United
States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Venzor-Ortega raises
the issue to preserve it for further review and has filed an unopposed motion
for summary disposition. Because summary disposition is appropriate, see
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Venzor-
Ortega’s motion is GRANTED, and the district court’s judgment is
AFFIRMED.
2