United States v. Rolando-Padilla ( 2023 )

Case: 23-50306 Document: 00516999024 Page: 1 Date Filed: 12/12/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-50306
Summary Calendar FILED
____________ December 12, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Melvin Rolando-Padilla,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:22-CR-1151-1
______________________________
Before Davis, Haynes, and Ho, Circuit Judges.
Per Curiam: *
Melvin Rolando-Padilla appeals the sentence imposed following his
conviction for illegal reentry into the United States in violation of 8 U.S.C.
§ 1326(a). He contends for the first time on appeal that the sentencing
enhancement in § 1326(b) is unconstitutional because it permits a sentence
above the otherwise applicable statutory maximum established by § 1326(a)
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50306 Document: 00516999024 Page: 2 Date Filed: 12/12/2023
No. 23-50306
based on facts that are neither alleged in the indictment nor found by a jury
beyond a reasonable doubt. Rolando-Padilla has filed an unopposed motion
for summary disposition acknowledging that this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), and explaining that
he seeks to preserve it for possible Supreme Court review.
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). Rolando-Padilla is, therefore,
correct that his argument is foreclosed. Accordingly, because summary
disposition is appropriate, see Groendyke Transp. Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969), the motion is GRANTED, and the district court’s
judgment is AFFIRMED.
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