United States v. Castaneda-Acevedo ( 2023 )

Case: 23-50350 Document: 00516932846 Page: 1 Date Filed: 10/16/2023
United States Court of Appeals
for the Fifth Circuit
_____________
United States Court of Appeals
Fifth Circuit
No. 23-50350
consolidated with FILED
No. 23-50352 October 16, 2023
_____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jose Castaneda-Acevedo,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC Nos. 4:21-CR-50-1, 4:23-CR-30-1
______________________________
Before Davis, Willett, and Oldham, Circuit Judges.
Per Curiam: *
Jose Castaneda-Acevedo appeals his conviction and sentence for
illegal re-entry into the United States under 8 U.S.C. § 1326(a) and (b)(1),
was well as the revocation of his term of supervised release related to a prior
illegal re-entry conviction. Castaneda-Acevedo does not raise any issues in
connection with the appeal of the revocation of his term of supervised release.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50350 Document: 00516932846 Page: 2 Date Filed: 10/16/2023
23-50350
c/w No. 23-50352
Rather, he argues for the first time on appeal that the recidivism
enhancement in § 1326(b) is unconstitutional because it permits a sentence
above the otherwise-applicable statutory maximum established by § 1326(a),
based on facts that are neither alleged in the indictment nor found by a jury
beyond a reasonable doubt. While Castaneda-Acevedo acknowledges 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. In addition, Castaneda-Acevedo has filed an unopposed motion for
summary disposition.
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). Thus, Castaneda-Acevedo 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).
Castaneda-Acevedo’s motion is GRANTED, and the judgments are
AFFIRMED.
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