United States v. Biester-Villeda ( 2023 )

Case: 23-50649 Document: 00516993495 Page: 1 Date Filed: 12/07/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-50649 FILED
December 7, 2023
Summary Calendar
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Milton Martin Biester-Villeda,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:22-CR-1912-1
______________________________
Before Jolly, Engelhardt, and Douglas, Circuit Judges.
Per Curiam: *
Milton Martin Biester-Villeda appeals his conviction and sentence for
illegal reentry after removal. He argues that 8 U.S.C. § 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.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50649 Document: 00516993495 Page: 2 Date Filed: 12/07/2023
No. 23-50649
Biester-Villeda 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). He
seeks to preserve the issue for possible Supreme Court review. We have held
that subsequent Supreme Court decisions such as Apprendi v. New Jersey, 530
U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013), did not
overrule Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553–54
(5th Cir. 2019). Thus, Biester-Villeda is correct that his argument is
foreclosed.
Because summary disposition is appropriate, see Groendyke Transp.,
Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Biester-Villeda’s motion is
GRANTED, and the district court’s judgment is AFFIRMED.
2