United States v. Baten-Sarat ( 2023 )

Case: 23-50335 Document: 00516952265 Page: 1 Date Filed: 11/01/2023
United States Court of Appeals
for the Fifth Circuit
_____________
United States Court of Appeals
Fifth Circuit
No. 23-50335
consolidated with FILED
No. 23-50347 November 1, 2023
Summary Calendar Lyle W. Cayce
_____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Elias Marcelino Baten-Sarat,
Defendant—Appellant.
______________________________
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 4:22-CR-805-1, 4:22-CR-801-1
______________________________
Before Smith, Higginson, and Engelhardt, Circuit Judges.
Per Curiam: *
Elias Marcelino Baten-Sarat appeals his conviction and sentence
under 8 U.S.C. § 1326 for illegal entry into the United States after removal.
He also appeals the revocation of a previously imposed term of supervised
release. He argues for the first time on appeal that § 1326(b) is
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50335 Document: 00516952265 Page: 2 Date Filed: 11/01/2023
23-50335
c/w No. 23-50347
unconstitutional. Baten-Sarat has filed an unopposed motion for summary
disposition acknowledging that his argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998), and explaining that he seeks to
preserve it for possible Supreme Court review.
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, Baten-Sarat 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).
Baten-Sarat’s motion is GRANTED, and the district court’s
judgments are AFFIRMED.
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