United States v. Astudillo-Herrera ( 2023 )

Case: 23-50045 Document: 00516933020 Page: 1 Date Filed: 10/16/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-50045
Summary Calendar FILED
____________ October 16, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Mario Astudillo-Herrera,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:22-CR-166-1
______________________________
Before Davis, Willett, and Oldham, Circuit Judges.
Per Curiam: *
Mario Astudillo-Herrera appeals his conviction and sentence under
8 U.S.C. § 1326 for illegal entry into the United States after removal. He
argues for the first time on appeal that § 1326(b) is unconstitutional.
Astudillo-Herrera has filed an unopposed motion for summary disposition
acknowledging that his argument is foreclosed by Almendarez-Torres v.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50045 Document: 00516933020 Page: 2 Date Filed: 10/16/2023
No. 23-50045
United States, 523 U.S. 224 (1998), but he seeks to preserve it for possible
Supreme Court review.
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, Astudillo-Herrera 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).
Astudillo-Herrera’s motion is GRANTED, and the district court’s
judgment is AFFIRMED.
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