United States v. Garza-Morin ( 2023 )

Case: 23-10559 Document: 00516968834 Page: 1 Date Filed: 11/15/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-10559
FILED
November 15, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Vidal Garza-Morin,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:22-CR-376-1
______________________________
Before Wiener, Stewart, and Douglas, Circuit Judges.
Per Curiam: *
Defendant-Appellant Vidal Garza-Morin appeals his conviction and
sentence for illegal re-entry into the United States after deportation under 8
U.S.C. § 1326(a) and (b)(1). On appeal, he renews his argument that the
recidivism enhancement in § 1326(b) is unconstitutional because it permits a
sentence above the otherwise-applicable statutory maximum established by
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-10559 Document: 00516968834 Page: 2 Date Filed: 11/15/2023
No. 23-10559
§ 1326(a), based on facts that are neither alleged in the indictment nor found
by a jury beyond a reasonable doubt. His ten-month term of imprisonment
does not exceed the maximum in § 1326(a), but his three-year term of
supervised release is only authorized by § 1326(b), by virtue of 18 U.S.C. §§
3559(a)(3) and 3583(b)(2). Cf. §§ 3559(a)(5), 3583(b)(3) (setting a one-year
maximum for an offense punishable under § 1326(a)).
Garza-Morin acknowledges this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he nevertheless
seeks to preserve it for possible Supreme Court review. The Government
has moved, without opposition, for summary affirmance or, alternatively, for
an extension of time to file its brief.
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). Garza-Morin is thus correct that
his argument is foreclosed. Because the Government’s 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 affirmance is appropriate. Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
The Government’s motion for summary affirmance is GRANTED,
and the judgment of the district court is AFFIRMED. The Government’s
alternative motion for an extension of time is DENIED as moot.
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