United States v. Castelan-Saucedo ( 2023 )

Case: 22-50968 Document: 00516697129 Page: 1 Date Filed: 03/31/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-50968
FILED
March 31, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Osvaldo Castelan-Saucedo,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:22-CR-457-1
______________________________
Before Smith, Southwick, and Douglas, Circuit Judges.
Per Curiam: *
Osvaldo Castelan-Saucedo appeals his sentence for illegal reentry
under 8 U.S.C. § 1326(a) and (b)(2), maintaining that § 1326(b) is unconsti-
tutional because it permits a sentence above the otherwise-applicable statu-
tory maximum based on facts not charged or proved beyond a reasonable
doubt. Castelan-Saucedo has filed an unopposed motion for summary
affirmance, conceding that his argument is foreclosed by Almendarez-Torres
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50968 Document: 00516697129 Page: 2 Date Filed: 03/31/2023
No. 22-50968
v. United States, 523 U.S. 224 (1998), and explaining that he seeks only to
preserve it for further review.
Because Castelan-Saucedo is correct that his argument is foreclosed,
see United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019), summary
affirmance is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969). Accordingly, the motion is GRANTED, and the
judgment is AFFIRMED.
2