United States v. Contreras-Zamarripa

Case: 21-50974 Document: 00516206899 Page: 1 Date Filed: 02/17/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 17, 2022
No. 21-50974
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Oscar Contreras-Zamarripa,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-478-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Oscar Contreras-Zamarripa appeals his conviction and sentence for
illegal reentry into the United States pursuant to 8 U.S.C. § 1326(a) and
(b)(1). For the first time on appeal, Contreras-Zamarripa argues that treating
a prior conviction that increases the statutory maximum under § 1326(b) as a
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-50974 Document: 00516206899 Page: 2 Date Filed: 02/17/2022
No. 21-50974
sentencing factor, rather than as an element of the offense, violates the
Constitution. He has filed an unopposed motion for summary disposition
and a letter brief explaining that he has raised the issue only to preserve it for
further review and conceding correctly that this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998). See United States v.
Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Because summary disposition is
appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.
1969), Contreras-Zamarripa’s motion is GRANTED, and the judgment of
the district court is AFFIRMED.
2