United States v. Avila-Mendez ( 2023 )

Case: 23-50291 Document: 00516931184 Page: 1 Date Filed: 10/13/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-50291
Summary Calendar FILED
____________ October 13, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Leoncio Fernando Avila-Mendez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:21-CR-749-1
______________________________
Before Wiener, Stewart, and Douglas, Circuit Judges.
Per Curiam: *
Defendant-Appellant Leoncio Fernando Avila-Mendez appeals his
conviction and sentence for illegal reentry into the United States after
removal. For the first time on appeal, Avila-Mendez 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
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50291 Document: 00516931184 Page: 2 Date Filed: 10/13/2023
No. 23-50291
established by § 1326(a) based on facts that are neither alleged in the
indictment nor found by a jury beyond a reasonable doubt. Although Avila-
Mendez acknowledges that this contention 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. See United States v. Garza-De La Cruz, 16 F.4th 1213,
1214 (5th Cir. 2021) (Costa & Ho, JJ., concurring).
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, Avila-Mendez 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 Avila-Mendez’s motion is GRANTED,
and the district court’s judgment is AFFIRMED.
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