United States v. Molina-Rivas

Case: 21-51035 Document: 00516248922 Page: 1 Date Filed: 03/22/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 22, 2022
No. 21-51035
Lyle W. Cayce
Summary Calendar
Clerk
United States of America,
Plaintiff—Appellee,
versus
Luis Antonio Molina-Rivas,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-453-1
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
Luis Antonio Molina-Rivas appeals his conviction and sentence for
illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a) and
(b)(2). For the first time on appeal, Molina-Rivas argues that § 1326(b) is
unconstitutional because it allows for a sentence above the otherwise
*
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opinion should not be published and is not precedent except under the limited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: 21-51035 Document: 00516248922 Page: 2 Date Filed: 03/22/2022
No. 21-51035
applicable statutory maximum based on facts that are neither alleged in the
indictment nor found by a jury beyond a reasonable doubt. 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 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), Molina-Rivas’s motion is
GRANTED, and the judgment of the district court is AFFIRMED.
2