United States v. Torrez-Gutierrez ( 2022 )

Case: 21-50969 Document: 00516242917 Page: 1 Date Filed: 03/17/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 17, 2022
No. 21-50969
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Larry Jose Torrez-Gutierrez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-407-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Larry Jose Torrez-Gutierrez appeals his conviction and sentence for
reentry after deportation under 8 U.S.C. § 1326(a) and (b)(1). For the first
time on appeal, he contends that § 1326(b) is unconstitutional because it
permits a defendant to be sentenced above the statutory maximum of
*
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opinion should not be published and is not precedent except under the limited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: 21-50969 Document: 00516242917 Page: 2 Date Filed: 03/17/2022
No. 21-50969
§ 1326(a) based on the fact of a prior conviction that was not alleged in the
indictment or found by a jury beyond a reasonable doubt. Torrez-Gutierrez
correctly concedes that the argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998). 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). However, he wishes to preserve the issue for further review and
has filed an unopposed motion for summary disposition. Because summary
disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969), Torrez-Gutierrez’s motion is GRANTED, and the
district court’s judgment is AFFIRMED.
2