United States v. Rios-Galicia

Case: 21-40830 Document: 00516299468 Page: 1 Date Filed: 04/28/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-40830 April 28, 2022
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Martin Rios-Galicia,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 5:20-CR-1516-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Martin Rios-Galicia appeals his conviction and sentence for illegal
reentry into the United States after deportation under 8 U.S.C. § 1326(a) and
(b)(2). Moving for summary disposition of his appeal, he contends for the
first time that the recidivism enhancement in § 1326(b) is unconstitutional
*
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opinion should not be published and is not precedent except under the limited circum-
stances set forth in 5th Circuit Rule 47.5.4.
Case: 21-40830 Document: 00516299468 Page: 2 Date Filed: 04/28/2022
No. 21-40830
because it permits a sentence above the otherwise-applicable statutory maxi-
mum established by § 1326(a) based on facts that are neither alleged in the
indictment nor found by a jury beyond a reasonable doubt. While Rios-
Galicia acknowledges 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.
Subsequent 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, Rios-Galicia is correct that his argument is foreclosed. Because
his position “is clearly right as a matter of law so that there can be no sub-
stantial question as to the outcome of the case,” summary affirmance is
appropriate. Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.
1969).
Accordingly, the motion for summary affirmance is GRANTED, and
the judgment is AFFIRMED.
2