United States v. Betero-Carrillo ( 2023 )

Case: 22-50988 Document: 00516740670 Page: 1 Date Filed: 05/05/2023
United States Court of Appeals
for the Fifth Circuit
_____________
United States Court of Appeals
Fifth Circuit
No. 22-50988
consolidated with FILED
No. 22-50993 May 5, 2023
_____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Gilberto Betero-Carrillo,
Defendant—Appellant.
______________________________
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 4:22-CR-434-1, 4:19-CR-872-2
______________________________
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam: *
Gilberto Betero-Carrillo appeals his conviction and sentence for illegal
reentry into the United States under 8 U.S.C. § 1326(a) and (b)(2), as well as
the judgment revoking his term of supervised release for a prior offense. The
latter challenge is unbriefed and thus abandoned. See United States v. Reagan,
596 F.3d 251, 254–55 (5th Cir. 2010).
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50988 Document: 00516740670 Page: 2 Date Filed: 05/05/2023
No. 22-50988
c/w No. 22-50993
On appeal, Betero-Carrillo contends that the recidivism enhancement
in § 1326(b) is unconstitutional because it permits a sentence 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. Although Betero-Carrillo acknowledges that 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 and has filed an unopposed motion for summary disposition.
Because Betero-Carrillo is correct that his argument is foreclosed, see
United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019), summary
disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969). Accordingly, Betero-Carrillo’s motion is GRANTED,
and the district court’s judgments are AFFIRMED.
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