United States v. Gomez-Izazaga ( 2023 )

Case: 22-50905 Document: 00516679248 Page: 1 Date Filed: 03/16/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50905
Summary Calendar FILED
____________ March 16, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Ediberto Gomez-Izazaga,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:22-CR-359-1
______________________________
Before Davis, Smith, and Douglas, Circuit Judges.
Per Curiam: *
Ediberto Gomez-Izazaga appeals his sentence for illegal reentry in
violation of 8 U.S.C. § 1326(a) and (b)(2). In his sole issue on appeal, Gomez-
Izazaga argues that § 1326(b) is unconstitutional because it permits a
sentence above the otherwise-applicable statutory maximum based on facts
that are neither alleged in the indictment nor found by a jury beyond a
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50905 Document: 00516679248 Page: 2 Date Filed: 03/16/2023
No. 22-50905
reasonable doubt. He has filed an unopposed motion for summary
disposition and a letter brief explaining that he has raised this issue only to
preserve it for further review and conceding correctly that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See
United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Because
summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406
F.2d 1158, 1162 (5th Cir. 1969), Gomez-Izazaga’s motion is GRANTED,
and the district court’s judgment is AFFIRMED.
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