United States v. Garcia-Bertadillo ( 2023 )

Case: 23-10474 Document: 00516930573 Page: 1 Date Filed: 10/13/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10474
Summary Calendar FILED
____________ October 13, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Juan Garcia-Bertadillo,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:22-CR-81-1
______________________________
Before Smith, Higginson, and Engelhardt, Circuit Judges.
Per Curiam: *
Juan Garcia-Bertadillo appeals the sentence for his conviction under
8 U.S.C. § 1326(a) and (b)(2) for illegal reentry after removal. He contends
that his sentence exceeds the statutory maximum and is therefore unconsti-
tutional because the district court enhanced it under § 1326(b) based on the
fact of a prior conviction that was not alleged in the indictment. He correctly
concedes that his argument is foreclosed by Almendarez-Torres v. United
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-10474 Document: 00516930573 Page: 2 Date Filed: 10/13/2023
No. 23-10474
States, 523 U.S. 224 (1998), and explains that he raises this issue to preserve
it 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, alternatively, for an extension of time to file a brief.
Because summary affirmance is appropriate, see Groendyke Transp.,
Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the motion for summary
affirmance is GRANTED, and the alternative motion for an extension of
time to file a brief is DENIED. The judgment is AFFIRMED.
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