United States v. Garcia-Salazar ( 2022 )

Case: 21-11036 Document: 00516260915 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. 21-11036
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Raul Garcia-Salazar,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CR-520-1
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Defendant-Appellant Raul Garcia-Salazar appeals his conviction and
sentence for illegal reentry after removal pursuant to 8 U.S.C. § 1326(a) and
(b)(1). For the first time on appeal, he contends that treating a prior
conviction that increases the statutory maximum under § 1326(b) as a
*
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opinion should not be published and is not precedent except under the limited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: 21-11036 Document: 00516260915 Page: 2 Date Filed: 03/30/2022
No. 21-11036
sentencing factor, rather than as an element of the offense, violates the
Constitution. He correctly concedes that the issue 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 Garcia-Salazar 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 Transport, Inc. v. Davis, 406 F.2d 1158, 1162
(5th Cir. 1969), summary affirmance is proper.
The Government’s unopposed motion for summary affirmance is
GRANTED and its alternative motion for an extension of time to file an
appellate brief is DENIED as moot. AFFIRMED.
2