United States v. Lopez-Cervantez

Case: 21-51006 Document: 00516260840 Page: 1 Date Filed: 03/30/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 30, 2022
No. 21-51006
Lyle W. Cayce
Summary Calendar
Clerk
United States of America,
Plaintiff—Appellee,
versus
Antonino Lopez-Cervantez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-510-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Antonino Lopez-Cervantez appeals his conviction of illegal reentry
after removal and his sentence of 16 months of imprisonment and three years
of supervised release. He maintains that his sentence exceeds the statutory
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
Case: 21-51006 Document: 00516260840 Page: 2 Date Filed: 03/30/2022
No. 21-51006
maximum because the enhanced penalty provisions of 8 U.S.C. § 1326(b) are
unconstitutional.
Lopez-Cervantez has filed an unopposed motion for summary dispo-
sition and a letter brief correctly conceding that this issue 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). Lopez-Cervantez states that he
has raised the issue only to preserve it for possible further review.
Because summary disposition is appropriate, see Groendyke Transp.,
Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the motion is GRANTED,
and the judgment is AFFIRMED.
2