United States v. Armenta-Lopez ( 2023 )

Case: 22-50874 Document: 00516687338 Page: 1 Date Filed: 03/23/2023
United States Court of Appeals
for the Fifth Circuit
_____________
United States Court of Appeals
Fifth Circuit
No. 22-50874
consolidated with FILED
No. 22-50890 March 23, 2023
_____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Edgar Ivan Armenta-Lopez,
Defendant—Appellant.
______________________________
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 4:19-CR-438-3, 4:22-CR-230-1
______________________________
Before Davis, Smith, and Douglas, Circuit Judges.
Per Curiam: *
Edgar Ivan Armenta-Lopez appeals his conviction and sentence for
illegal reentry into the United States under 8 U.S.C. § 1326(a) and (b)(2), as
well as the judgment revoking his term of supervised release for a prior
offense. The latter challenge is unbriefed and thus abandoned. See United
States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010).
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50874 Document: 00516687338 Page: 2 Date Filed: 03/23/2023
No. 22-50874
c/w No. 22-50890
On appeal, Armenta-Lopez contends that the recidivism
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. Although Armenta-Lopez acknowledges that
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 and has filed an unopposed motion for summary disposition.
Because Armenta-Lopez is correct that his argument is foreclosed, see
United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019), summary
disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969). Accordingly, Armenta-Lopez’s motion is
GRANTED, and the district court’s judgments are AFFIRMED.
2