United States v. Montoya-De La Cruz ( 2022 )

Case: 21-50850 Document: 00516360935 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. 21-50850
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Ramiro Montoya-De La Cruz,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-336-1
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Ramiro Montoya-De La Cruz appeals his conviction and sentence
under 8 U.S.C. § 1326(a) and (b)(1). For the first time on appeal, he
contends that it violates the Constitution to treat a prior conviction that
increases the statutory maximum under § 1326(b) as a sentencing factor,
*
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opinion should not be published and is not precedent except under the limited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: 21-50850 Document: 00516360935 Page: 2 Date Filed: 06/17/2022
No. 21-50850
rather than as an element of the offense. He correctly concedes that his
argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224(1998), but he wishes to preserve it for further review. See United States v.
Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda-Arrellano,
492 F.3d 624, 625–26 (5th Cir. 2007).
Because the only issue is foreclosed and “there can be no substantial
question as to the outcome of the case,” the unopposed motion for summary
disposition filed by Montoya-De La Cruz is GRANTED. Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). The judgment of
the district court is AFFIRMED.
2