United States v. Rodriguez-Castro ( 2022 )

Case: 21-50929 Document: 00516241547 Page: 1 Date Filed: 03/16/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 16, 2022
No. 21-50929
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jesus Rodriguez-Castro,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:19-CR-3472-1
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
Jesus Rodriguez-Castro appeals his conviction and sentence for illegal
reentry into the United States under 8 U.S.C. § 1326(a) and (b)(1). For the
first time on appeal, Rodriguez-Castro contends that the recidivism
enhancement in § 1326(b) is unconstitutional because it permits a sentence
*
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opinion should not be published and is not precedent except under the limited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: 21-50929 Document: 00516241547 Page: 2 Date Filed: 03/16/2022
No. 21-50929
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. While Rodriguez-Castro acknowledges 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. In addition, Rodriguez-Castro has filed an unopposed motion for
summary disposition.
This court has held that subsequent Supreme Court decisions such as
Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530
U.S. 466 (2000), did not overrule Almendarez-Torres. See United States v.
Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Thus, Rodriguez-Castro is
correct that his argument is foreclosed, and summary disposition is
appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th
Cir. 1969).
Rodriguez-Castro’s motion is GRANTED and the district court’s
judgment is AFFIRMED.
2