United States v. Diaz-Diaz ( 2023 )

Case: 23-50179 Document: 00516842483 Page: 1 Date Filed: 08/01/2023
United States Court of Appeals
for the Fifth Circuit
_____________
United States Court of Appeals
Fifth Circuit
No. 23-50179
consolidated with FILED
No. 23-50186 August 1, 2023
_____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Salvador Diaz-Diaz,
Defendant—Appellant.
______________________________
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 4:22-CR-697-1, 4:22-CR-713-1
______________________________
Before Smith, Higginson, and Engelhardt, Circuit Judges.
Per Curiam: *
Salvador Diaz-Diaz appeals his conviction and sentence for illegal
reentry after removal in violation of 8 U.S.C. § 1326(a) and (b). He also
appeals the revocation of his supervised release and the sentence imposed
upon revocation.
With respect to his illegal reentry conviction and sentence, Diaz-Diaz
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50179 Document: 00516842483 Page: 2 Date Filed: 08/01/2023
No. 23-50179
c/w No. 23-50186
contends that the application of § 1326(b)’s enhanced penalty provision is
unconstitutional because it permits a defendant to be sentenced above the
statutory maximum of § 1326(a) based on the fact of a prior conviction that
was not alleged in the indictment or found by a jury beyond a reasonable
doubt. Diaz-Diaz has filed an unopposed motion for summary disposition
and a letter brief conceding that the issue 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), and explaining that he raises the issue to preserve it
for Supreme Court review.
Because summary disposition is appropriate, see Groendyke Transp.,
Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the motion is GRANTED,
and the judgments are AFFIRMED.
2