United States v. Mondragon-Calderon ( 2023 )

Case: 23-50393 Document: 00516925484 Page: 1 Date Filed: 10/10/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-50393
Summary Calendar FILED
____________ October 10, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Ramiro Mondragon-Calderon,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:23-CR-35-1
______________________________
Before Willett, Duncan, and Douglas, Circuit Judges.
Per Curiam: *
Ramiro Mondragon-Calderon appeals his conviction and sentence for
illegal reentry into the United States after removal. For the first time on
appeal, Mondragon-Calderon contends that the recidivism enhancement in
8 U.S.C. § 1326(b) is unconstitutional because it permits a sentence above
the otherwise applicable statutory maximum established by § 1326(a) based
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50393 Document: 00516925484 Page: 2 Date Filed: 10/10/2023
No. 23-50393
on facts that are neither alleged in the indictment nor found by a jury beyond
a reasonable doubt. Although Mondragon-Calderon acknowledges that this
argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224(1998), he nevertheless seeks to preserve it for possible Supreme Court
review and has filed an unopposed motion for summary disposition.
We have 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). Accordingly, Mondragon-
Calderon 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).
IT IS ORDERED that Mondragon-Calderon’s motion is
GRANTED, and the district court’s judgment is AFFIRMED.
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