United States v. Lopez-Arellano ( 2023 )

Case: 23-50295 Document: 00516913996 Page: 1 Date Filed: 09/29/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-50295
Summary Calendar FILED
____________ September 29, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Donato Lopez-Arellano,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:22-CR-2069-1
______________________________
Before King, Haynes, and Graves, Circuit Judges.
Per Curiam: *
Donato Lopez-Arellano appeals his 27-month, above-guidelines range
sentence for illegal entry following deportation, see 8 U.S.C. § 1326(a) &
(b)(2), contending that it violates Apprendi v. New Jersey, 530 U.S. 466(2000), because it is greater than the two-year statutory maximum sentence
of § 1326(a) and is based on a fact—his prior conviction for an aggravated
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50295 Document: 00516913996 Page: 2 Date Filed: 09/29/2023
No. 23-50295
felony—that was neither pleaded in the indictment nor found by a jury
beyond a reasonable doubt or admitted by him in pleading guilty. Lopez-
Arellano concedes that this issue is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), and he seeks to preserve the issue for possible
Supreme Court review. Accordingly, he moves for summary disposition.
The Government does not oppose the motion.
Lopez-Arellano is correct that his argument 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). Therefore,
“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), and
summary disposition is proper. Accordingly, Lopez-Arellano’s motion for
summary disposition is GRANTED, and the judgment is AFFIRMED.
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