United States v. Acosta-Estrella ( 2023 )

Case: 23-50253 Document: 00516893542 Page: 1 Date Filed: 09/13/2023
United States Court of Appeals
for the Fifth Circuit
_____________
United States Court of Appeals
Fifth Circuit
No. 23-50253
consolidated with FILED
No. 23-50256 September 13, 2023
_____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Alberto Acosta-Estrella,
Defendant—Appellant.
______________________________
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 4:16-CR-91-4, 4:22-CR-749-1
______________________________
Before Davis, Haynes, and Ho, Circuit Judges.
Per Curiam: *
Alberto Acosta-Estrella appeals his guilty plea conviction and
sentence for illegal reentry after removal in violation of 8 U.S.C. § 1326(a)
and (b)(2), as well as the revocation of his supervised release and the sentence
imposed upon revocation. He does not raise any arguments concerning the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50253 Document: 00516893542 Page: 2 Date Filed: 09/13/2023
No. 23-50253
c/w No. 23-50256
revocation, meaning that any challenge on that basis is abandoned on appeal.
See United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010).
Acosta-Estrella argues 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 facts that
are neither alleged in the indictment nor found by a jury beyond a reasonable
doubt. He acknowledges that this argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve it for
possible Supreme Court review. Accordingly, he has filed an unopposed
motion for summary disposition.
We have 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). Acosta-Estrella is, therefore,
correct that his argument is foreclosed. Because his position “is clearly right
as a matter of law so that there can be no substantial question as to the
outcome of the case,” summary disposition is proper. Groendyke Transp.,
Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, Acosta-Estrella’s motion for summary disposition is
GRANTED, and the judgments of the district court are AFFIRMED.
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