United States v. Orozco-Calderon ( 2023 )

Case: 23-50077 Document: 00516814177 Page: 1 Date Filed: 07/10/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-50077
Summary Calendar FILED
____________ July 10, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Armando Orozco-Calderon,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:22-CR-651-1
______________________________
Before Davis, Smith, and Douglas, Circuit Judges.
Per Curiam: *
Armando Orozco-Calderon appeals the sentence imposed after his
guilty plea conviction for illegal reentry subsequent to removal, pursuant to
8 U.S.C. § 1326(a) and (b)(2). Orozco-Calderon contends that it violates the
Constitution to treat a prior conviction that increases the statutory maximum
under § 1326(b) as a sentencing factor, rather than as an element of the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50077 Document: 00516814177 Page: 2 Date Filed: 07/10/2023
No. 23-50077
offense. Orozco-Calderon concedes that this issue is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to
preserve the issue for future review. In addition, he has filed an unopposed
motion for summary disposition.
As Orozco-Calderon 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 his 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
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), summary
disposition is proper. Accordingly, Orozco-Calderon’s motion is
GRANTED, and the judgment of the district court is AFFIRMED.
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