DocketNumber: 23-50083
Filed Date: 7/17/2023
Status: Non-Precedential
Modified Date: 7/18/2023
Case: 23-50083 Document: 00516823321 Page: 1 Date Filed: 07/17/2023 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-50083 Summary Calendar FILED ____________ July 17, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Adolph Gamez, Jr., Defendant—Appellant, consolidated with _____________ No. 23-50084 _____________ United States of America, Plaintiff—Appellee, versus Leonel Fajardo-Ruiz, Defendant—Appellant. Case: 23-50083 Document: 00516823321 Page: 2 Date Filed: 07/17/2023 No. 23-50083 c/w No. 23-50084 ______________________________ Appeals from the United States District Court for the Western District of Texas USDC Nos. 4:22-CR-667-1, 4:22-CR-650-1 ______________________________ Before Higginbotham, Stewart, and Southwick, Circuit Judges. Per Curiam: * Leonel Fajardo-Ruiz 1 appeals his conviction and sentence for illegal reentry after removal under8 U.S.C. § 1326
(a) and (b)(2), as well as the order revoking a term of supervised release he was serving for a prior offense. He has not briefed, and has thus waived, any challenge to the revocation of supervised release or to his revocation sentence. See United States v. Reagan,596 F.3d 251
, 254–55 (5th Cir. 2010). In his sole issue on appeal, Fajardo- Ruiz contends that Section 1326(b) is unconstitutional because it allows a sentence above the otherwise 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 this issue only to preserve it for further review and conceding correctly 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). Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis,406 F.2d 1158
, 1162 (5th Cir. 1969), Fajardo-Ruiz’s motion is GRANTED, and the district court’s judgments are AFFIRMED. _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. 1 Although No. 23-50083 lists the Appellant’s name as Adolph Gamez, Jr., his counsel and the presentence report indicate that his true name is Leonel Fajardo-Ruiz. 2