United States v. Ortiz-Castillo

Case: 22-50384 Document: 00516602845 Page: 1 Date Filed: 01/09/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-50384
consolidated with FILED
No. 22-50402 January 9, 2023
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Miguel Ortiz-Castillo,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-674-1
USDC No. 4:21-CR-744-1
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:*
Miguel Ortiz-Castillo appeals his conviction and sentence for illegal
reentry after removal, as well as the judgment revoking his term of supervised
release for committing a new offense. He has not briefed, and has therefore
*
This opinion is not designated for publication. See 5TH CIR. R. 47.5.
Case: 22-50384 Document: 00516602845 Page: 2 Date Filed: 01/09/2023
No. 22-50384
c/w No. 22-50402
abandoned, any challenge to the revocation of supervised release or his
revocation sentence. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
For the first time on appeal, Ortiz-Castillo argues that his sentence
exceeds the statutory maximum and is therefore unconstitutional because the
district court enhanced his sentence under 8 U.S.C. § 1326(b) based on facts
that were neither alleged in the indictment nor found by a jury beyond a
reasonable doubt. While he acknowledges that this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), he nevertheless
seeks to preserve it for possible Supreme Court review. In addition, Ortiz-
Castillo has filed an unopposed motion for summary disposition.
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). Thus, Ortiz-Castillo is correct that his argument is
foreclosed, and summary disposition is appropriate. See Groendyke Transp.,
Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Ortiz-Castillo’s motion is GRANTED, and the district court’s
judgments are AFFIRMED.
2