United States v. Ramirez-Garcia

Case: 21-50005 Document: 00515996408 Page: 1 Date Filed: 08/26/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 26, 2021
No. 21-50005 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Hugo Ramirez-Garcia,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-332-1
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
Hugo Ramirez-Garcia was sentenced to 30 months of imprisonment
and three years of supervised release for his guilty plea conviction of illegal
reentry after removal, in violation of 8 U.S.C. § 1326. As his sole appellate
issue, Ramirez-Garcia argues that the recidivism enhancement under
*
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opinion should not be published and is not precedent except under the limited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: 21-50005 Document: 00515996408 Page: 2 Date Filed: 08/26/2021
No. 21-50005
§ 1326(b) is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466(2000), and subsequent decisions because the statute provides for a sentence
above the otherwise applicable statutory maximum based on facts that are
neither alleged in the indictment nor found by a jury beyond a reasonable
doubt. Ramirez-Garcia concedes that this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998), but seeks to
preserve the issue for further review.
The Government has filed an unopposed motion for summary
affirmance or, in the alternative, an extension of time to file a brief. As the
Government argues, and Ramirez-Garcia concedes, the sole issue raised on
appeal is foreclosed by Almendarez-Torres, 523 U.S. at 226-27. See United
States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda-
Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007). Summary affirmance is
appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th
Cir. 1969).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, the Government’s alternative motion for an extension of time
to file a brief is DENIED AS MOOT, and the judgment of the district court
is AFFIRMED.
2