United States v. Delgado-Adame ( 2023 )

Case: 22-10586 Document: 00516683200 Page: 1 Date Filed: 03/21/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10586
Summary Calendar FILED
____________ March 21, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Carlos Delgado-Adame,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:22-CR-18-1
______________________________
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam: *
Carlos Delgado-Adame appeals his conviction and 60-month sentence
for illegal reentry after having been previously removed, in violation of 8
U.S.C. § 1326(a) and (b)(1). 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 § 1326(b) as a sentencing factor, rather than as an
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10586 Document: 00516683200 Page: 2 Date Filed: 03/21/2023
No. 22-10586
element of the offense. Delgado-Adame concedes that Almendarez-Torres v.
United States, 523 U.S. 224 (1998), forecloses this argument, but he wishes
to preserve it for further review. The Government has moved for summary
affirmance or, alternatively, for an extension of time to file its brief.
As the Government asserts and as Delgado-Adame 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 as moot.
2