United States v. Aparicio-Martinez ( 2023 )

Case: 22-50969 Document: 00516741558 Page: 1 Date Filed: 05/08/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50969
Summary Calendar FILED
____________ May 8, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Juan Leonardo Aparicio-Martinez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:22-CR-466-1
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam: *
Juan Leonardo Aparicio-Martinez appeals his sentence of 30 months
of imprisonment and three years of supervised release imposed following his
guilty plea conviction for illegal reentry after removal. He argues that 8
U.S.C. § 1326(b) is unconstitutional because it allows a sentence above the
otherwise applicable statutory maximum of two years of imprisonment and
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50969 Document: 00516741558 Page: 2 Date Filed: 05/08/2023
No. 22-50969
one year of supervised release based on facts that are neither alleged in the
indictment nor found by a jury beyond a reasonable doubt.
Aparicio-Martinez has filed an unopposed motion for summary
disposition and a letter brief correctly conceding that the only issue he raises
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). He explains that
he has raised the issue to preserve it for possible further review. Accordingly,
because summary disposition is appropriate, see Groendyke Transp., Inc. v.
Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Aparicio-Martinez’s motion is
GRANTED, and the district court’s judgment is AFFIRMED.
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