United States v. Covarrubias-Martinez ( 2023 )

Case: 23-40368 Document: 00516973176 Page: 1 Date Filed: 11/17/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-40368
FILED
November 17, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Eleuterio Covarrubias-Martinez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:22-CR-1932-1
______________________________
Before Smith, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
Eleuterio Covarrubias-Martinez appeals his conviction and sentence
for being found in the United States after a previous deportation. He argues
that 8 U.S.C. § 1326(b) is unconstitutional because it allows 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: 23-40368 Document: 00516973176 Page: 2 Date Filed: 11/17/2023
No. 23-40368
on facts that are neither alleged in the indictment nor found by a jury beyond
a reasonable doubt.
Covarrubias-Martinez has filed an unopposed motion for summary
disposition and a letter brief correctly conceding that the only issue he raises
is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See
United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). He explains that
he has raised the issue to preserve it for possible further review. Accordingly,
because summary disposition is appropriate, see Groendyke Transp., Inc. v.
Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Covarrubias-Martinez’s motion
is GRANTED, and the district court’s judgment is AFFIRMED.
2