United States v. Reyes-Lopez ( 2022 )

Case: 21-11122 Document: 00516259470 Page: 1 Date Filed: 03/30/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 30, 2022
No. 21-11122
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Isidoro Reyes-Lopez,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 4:21-CR-73-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Isidoro Reyes-Lopez appeals his conviction and sentence for illegal
reentry after deportation under 8 U.S.C. § 1326(a) and (b)(1). He contends
that the recidivism enhancement in § 1326(b) is unconstitutional because it
permits a sentence above the otherwise-applicable statutory maximum estab-
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
Case: 21-11122 Document: 00516259470 Page: 2 Date Filed: 03/30/2022
No. 21-11122
lished by § 1326(a) based on facts that are neither alleged in the indictment
nor found by a jury beyond a reasonable doubt. Reyes-Lopez acknowledges
that this argument is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224 (1998), but he seeks to preserve it for possible Supreme Court
review. The government moves without opposition for summary affirmance
or, alternatively, for an extension of time to file its brief.
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, Reyes-Lopez is correct that his argument is foreclosed.
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,” summary
affirmance is appropriate. Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969).
Accordingly, the motion for summary affirmance is GRANTED, and
the judgment is AFFIRMED. The government’s alternative motion for an
extension is DENIED.
2