United States v. Gil ( 2023 )

Case: 23-10190 Document: 00516954264 Page: 1 Date Filed: 11/02/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 23-10190 November 2, 2023
Summary Calendar
Lyle W. Cayce
____________
Clerk
United States of America,
Plaintiff—Appellee,
versus
Emmanuel Gil,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:22-CR-292-1
______________________________
Before Haynes, Graves, and Higginson, Circuit Judges.
Per Curiam: *
Emmanuel Gil appeals his sentence of 53 months of imprisonment and
three years of supervised release for illegally reentering the United States
after removal, in violation of 8 U.S.C. § 1326(a) and (b). He argues that
§ 1326(b) is unconstitutional because it allows a sentence above the otherwise
applicable two-year statutory maximum of imprisonment in § 1326(a) based
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-10190 Document: 00516954264 Page: 2 Date Filed: 11/02/2023
No. 23-10190
on facts that are neither alleged in the indictment nor found by a jury beyond
a reasonable doubt. He also argues that his three-year term of supervised
release is unconstitutional for the same reasons, as it exceeds the one-year
maximum that would apply under § 1326(a) and 18 U.S.C. §§ 3559 and 3583.
However, he correctly concedes that his arguments are foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), and he raises them
merely to preserve them for further review. See United States v. Pervis, 937
F.3d 546, 553-54 (5th Cir. 2019). The Government has moved, without
opposition, for summary affirmance, or in the alternative, for an extension of
time to file a brief on the merits.
Because summary affirmance is appropriate, see Groendyke Transp.,
Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the Government’s
unopposed motion for summary affirmance is GRANTED, the
Government’s alternative motion for an extension of time to file a brief is
DENIED, and the district court’s judgment is AFFIRMED.
2