United States v. Robles-Perez ( 2023 )

Case: 23-50145 Document: 00516921496 Page: 1 Date Filed: 10/05/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-50145
Summary Calendar FILED
____________ October 5, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Ismael Robles-Perez,
Defendant—Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:22-CR-1119-1
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Before Willett, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
Ismael Robles-Perez appeals his sentence for illegal reentry under
8 U.S.C. § 1326(a) and (b)(1), arguing that § 1326(b) is unconstitutional
because it permits a sentence above the otherwise-applicable statutory
maximum based on facts not charged or proved beyond a reasonable doubt.
He has filed an unopposed motion for summary disposition, conceding this
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50145 Document: 00516921496 Page: 2 Date Filed: 10/05/2023
No. 23-50145
argument is foreclosed by Almendarez-Torres v. United States, 1 but explaining
that he raises it in order to preserve the argument for further review.
Because Robles-Perez is correct in conceding that his argument is
foreclosed, 2 summary disposition is appropriate. 3 Accordingly, his motion is
GRANTED, and the judgment of the district court is AFFIRMED.
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1
523 U.S. 224 (1998).
2
United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019) (explaining that
because the Supreme Court has preserved Almendarez, it still controls the issue).
3
See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
2