United States v. Guerrero-Lazaro ( 2023 )

Case: 23-50243 Document: 00516892037 Page: 1 Date Filed: 09/12/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-50243
Summary Calendar FILED
____________ September 12, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Juan Antonio Guerrero-Lazaro,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:22-CR-747-1
______________________________
Before Davis, Ho, and Wilson, Circuit Judges.
Per Curiam: *
Juan Antonio Guerrero-Lazaro appeals his conviction and sentence
for illegal re-entry into the United States under 8 U.S.C. § 1326(a) and (b)(1).
On appeal, he renews his objection that the recidivism enhancement in
§ 1326(b) is unconstitutional because it permits a sentence above the
otherwise-applicable statutory maximum established by § 1326(a), based on
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50243 Document: 00516892037 Page: 2 Date Filed: 09/12/2023
No. 23-50243
facts that are neither alleged in the indictment nor found by a jury beyond a
reasonable doubt. While Guerrero-Lazaro acknowledges this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), he
nevertheless seeks to preserve it for possible Supreme Court review. In
addition, Guerrero-Lazaro has filed an unopposed motion for summary
disposition.
This court has held that subsequent Supreme Court decisions such as
Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530
U.S. 466 (2000), did not overrule Almendarez-Torres. See United States v.
Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Thus, Guerrero-Lazaro is
correct that his argument is foreclosed, and summary disposition is
appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th
Cir. 1969).
Guerrero-Lazaro’s motion is GRANTED, and the district court’s
judgment is AFFIRMED.
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