United States v. Ramirez-Gomez ( 2023 )

Case: 23-50455 Document: 00516950246 Page: 1 Date Filed: 10/31/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-50455
Summary Calendar FILED
____________ October 31, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Noemy Ramirez-Gomez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:22-CR-627-1
______________________________
Before Willett, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
Noemy Ramirez-Gomez appeals his conviction and sentence for
illegal reentry after removal. The sole argument he raises on appeal is that 8
U.S.C. § 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: 23-50455 Document: 00516950246 Page: 2 Date Filed: 10/31/2023
No. 23-50455
facts that are neither alleged in the indictment nor found by a jury beyond a
reasonable doubt.
Ramirez-Gomez filed an unopposed motion for summary disposition
and a letter brief conceding that this issue is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998). He seeks to preserve the issue for
possible Supreme Court review. We have held that subsequent Supreme
Court decisions such as Apprendi v. New Jersey, 530 U.S. 466 (2000), and
Alleyne v. United States, 570 U.S. 99 (2013), did not overrule Almendarez-
Torres. See United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019). Thus,
Ramirez-Gomez is correct that his argument is foreclosed.
Because summary disposition is appropriate, see Groendyke Transp.,
Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Ramirez-Gomez’s motion
is GRANTED, and the district court’s judgment is AFFIRMED.
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