United States v. Garcia Briseno ( 2023 )

Case: 23-10548 Document: 00516974097 Page: 1 Date Filed: 11/20/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10548
Summary Calendar FILED
____________ November 20, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Eduardo Garcia Briseno,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:22-CR-37-1
______________________________
Before Smith, Higginson, and Engelhardt, Circuit Judges.
Per Curiam: *
Eduardo Garcia Briseno appeals the sentence for his conviction under
8 U.S.C. § 1326(a) and (b)(1) for illegal reentry into the United States after
removal. He contends that the enhancement of his sentence under § 1326(b)
is unconstitutional because it was based on the fact of a prior conviction that
was not alleged in the indictment and neither found by a jury nor admitted by
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-10548 Document: 00516974097 Page: 2 Date Filed: 11/20/2023
No. 23-10548
him.
Garcia Briseno correctly concedes that this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), and he raises the
issue merely to preserve it for further review. See United States v. Pervis,
937 F.3d 546, 553–54 (5th Cir. 2019). The government therefore has moved
without opposition for summary affirmance, or, alternatively, for an exten-
sion of time to file its brief.
Because summary affirmance is appropriate, see Groendyke Transp.,
Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the motion for summary
affirmance is GRANTED, the alternative motion for an extension is
DENIED, and the judgment is AFFIRMED.
2