United States v. Berrun-Torres

Case: 22-10645 Document: 00516571294 Page: 1 Date Filed: 12/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 22-10645 December 8, 2022
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Bernardino Berrun-Torres,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:22-CR-16-1
Before Smith, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
Bernardino Berrun-Torres appeals his conviction and sentence for
illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2).
Berrun-Torres contends, as he did in the district court, that it violates the
Constitution to treat a prior conviction that increases the statutory maximum
under § 1326(b) as a sentencing factor, rather than as an element of the
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10645 Document: 00516571294 Page: 2 Date Filed: 12/08/2022
No. 22-10645
offense. Berrun-Torres concedes that the issue is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve it for
further review. Agreeing that the issue is foreclosed, the government moves
without opposition for summary affirmance, or, alternatively, for an exten-
sion of time to file its brief.
The parties are correct that Berrun-Torres’s assertion is foreclosed by
Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir.
2019). Accordingly, the motion for summary affirmance is GRANTED, see
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the gov-
ernment’s alternative motion for an extension of time to file a brief is
DENIED, and the judgment is AFFIRMED.
2