United States v. Cortez-Garcia ( 2023 )

Case: 23-10349 Document: 00516917218 Page: 1 Date Filed: 10/03/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10349
Summary Calendar FILED
____________ October 3, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Gilberto Salvador Cortez-Garcia,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:22-CR-328-1
______________________________
Before Jones, Southwick, and Ho, Circuit Judges.
Per Curiam: *
Gilberto Salvador Cortez-Garcia appeals his sentence for illegal
reentry into the United States after being removed, in violation of 8 U.S.C.
§ 1326(a) and (b)(1). He argues that 8 U.S.C. § 1326(b) is unconstitutional
_____________________
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances set
forth in 5th Circuit Rule 47.5.4.
Case: 23-10349 Document: 00516917218 Page: 2 Date Filed: 10/03/2023
No. 23-10349
because it allows 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. However, he
correctly concedes that this argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998), and he raises this issue merely to preserve
it for further review. See United States v. Pervis, 937 F.3d 546, 553-54 (5th
Cir. 2019). The Government has moved, without opposition, for summary
affirmance, or in the alternative, for an extension of time to file a brief on the
merits.
Because summary affirmance is appropriate, see Groendyke Transp.,
Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the Government’s motion
for summary affirmance is GRANTED, the Government’s alternative
motion for an extension of time to file a brief is DENIED, and the district
court’s judgment is AFFIRMED.
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