United States v. Delgado-Perez ( 2023 )

Case: 22-10801 Document: 00516697227 Page: 1 Date Filed: 03/31/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10801
Summary Calendar FILED
____________ March 31, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Sergio Delgado-Perez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CR-337-1
______________________________
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam: *
Sergio Delgado-Perez appeals his conviction and 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 violates his constitutional due process
rights to treat a prior conviction that increases the statutory maximum under
_____________________
*
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opinion should not be published and is not precedent except under the limited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: 22-10801 Document: 00516697227 Page: 2 Date Filed: 03/31/2023
No. 22-10801
§ 1326(b) as a sentencing factor, rather than as an element of the offense.
Delgado-Perez concedes that the argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998), but he wishes to preserve it for
further review. The Government has moved without opposition for
summary affirmance or, alternatively, for an extension of time to file its brief.
As the Government asserts and as Delgado-Perez 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.
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