United States v. De La Rosa-De La Cerda ( 2023 )

Case: 22-10952 Document: 00516732009 Page: 1 Date Filed: 05/01/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10952
Summary Calendar FILED
____________ May 1, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Julio Cesar De La Rosa-De La Cerda,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:22-CR-133-1
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
Julio Cesar De La Rosa-De La Cerda appeals his conviction and
sentence for illegal reentry into the United States under 8 U.S.C. § 1326(a)
and (b)(2). According to De La Rosa-De La Cerda, the recidivism
enhancement in § 1326(b) defines an offense separate from that set forth in
§ 1326(a). Therefore, his sentence under § 1326(b) exceeds the applicable
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10952 Document: 00516732009 Page: 2 Date Filed: 05/01/2023
No. 22-10952
statutory maximum established by § 1326(a) based on facts that are neither
alleged in the indictment nor found by a jury beyond a reasonable doubt, and
so violates due process.
The Government has filed an unopposed motion for summary
affirmance, averring that this argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998). Alternatively, the Government requests
an extension of thirty days in which to file a merits brief. Although De La
Rosa-De La Cerda acknowledges his argument is foreclosed by Almendarez-
Torres, he nevertheless seeks to preserve the issue for possible Supreme
Court review. Because the Government and De La Rosa-De La Cerda are
correct that his argument is foreclosed, see United States v. Pervis, 937 F.3d
546, 553–54 (5th Cir. 2019), summary disposition is appropriate, see
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, the judgment is AFFIRMED, and the Government’s
alternative motion for an extension of time to file a brief is DENIED AS
MOOT.
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