United States v. Damaso-Sixtos ( 2023 )

Case: 23-50344 Document: 00516999969 Page: 1 Date Filed: 12/13/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-50344
Summary Calendar FILED
____________ December 13, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Bartolo Damaso-Sixtos,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:22-CR-1500-1
______________________________
Before Wiener, Stewart, and Douglas, Circuit Judges.
Per Curiam: *
Defendant-Appellant Bartolo Damaso-Sixtos 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 because it permits a sentence above the otherwise-
applicable statutory maximum established by § 1326(a) based on facts that
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50344 Document: 00516999969 Page: 2 Date Filed: 12/13/2023
No. 23-50344
are neither alleged in the indictment nor found by a jury beyond a reasonable
doubt. Damaso-Sixtos has filed an unopposed motion for summary
disposition. He acknowledges that his argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve the
argument 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); United States v. Wallace, 759 F.3d
486, 497 (5th Cir. 2014). Damaso-Sixtos is therefore correct that his
argument is foreclosed and that summary disposition is appropriate. See
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Damaso-Sixtos’s unopposed motion for summary disposition is
GRANTED, and the district court’s judgment is AFFIRMED.
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