United States v. Bernal-Ceto

Case: 22-50370 Document: 00516577267 Page: 1 Date Filed: 12/13/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-50370
Summary Calendar FILED
December 13, 2022
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Paulo Bernal-Ceto,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-1070-1
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
Paulo Bernal-Ceto appeals his sentence for his guilty plea conviction
of illegal reentry after removal from the United States in violation of 8 U.S.C.
§ 1326. For the first time on appeal, he challenges the district court’s
application of the enhanced penalty range in § 1326(b) as unconstitutional
because it permits a defendant to be sentenced above the statutory maximum
* This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50370 Document: 00516577267 Page: 2 Date Filed: 12/13/2022
No. 22-50370
of § 1326(a) based on the fact of a prior conviction that was not alleged in the
indictment or found by a jury beyond a reasonable doubt. He raises the issue
to preserve it for further review and has filed an unopposed motion for
summary disposition, correctly conceding that it 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), Bernal-Ceto’s motion is
GRANTED, and the district court’s judgment is AFFIRMED.
2