United States v. Lares-Nunez ( 2023 )

Case: 22-50966 Document: 00516735939 Page: 1 Date Filed: 05/03/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50966
Summary Calendar FILED
____________ May 3, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Hector Lares-Nunez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:22-CR-479-1
______________________________
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam: *
Hector Lares-Nunez appeals his sentence for illegal reentry into the
United States under 8 U.S.C. § 1326(a) and (b)(2). Lares-Nunez argues that
the recidivism enhancement in § 1326(b) is unconstitutional because it
permits a sentence above the applicable maximum in § 1326(a), based on
facts neither alleged in the indictment nor found by a jury beyond a
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50966 Document: 00516735939 Page: 2 Date Filed: 05/03/2023
No. 22-50966
reasonable doubt. Lares-Nunez acknowledges that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
nevertheless seeks to preserve it for possible Supreme Court review.
Accordingly, Lares-Nunez has filed an unopposed motion for summary
disposition.
We have held that 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). As Lares-Nunez concedes that
his argument is foreclosed, summary disposition is appropriate. See
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Lares-Nunez’s motion is GRANTED, and the district court’s
judgment is AFFIRMED.
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