eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fifth Circuit
 2023-05

United States v. Roman ( 2023 )


Menu:
 
  • Case: 22-50991         Document: 00516733489             Page: 1      Date Filed: 05/01/2023
United States Court of Appeals
for the Fifth Circuit
_____________
United States Court of Appeals
Fifth Circuit
No. 22-50991
consolidated with                                    FILED
No. 22-51010                                    May 1, 2023
_____________                                 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Rodolfo Hernandez Roman,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC Nos. 4:22-CR-528-1,
4:22-CR-242-1
______________________________
Before Davis, Smith, and Douglas, Circuit Judges.
Per Curiam: *
Rodolfo Hernandez Roman appeals his sentence for illegal reentry
after removal, as well as the judgment revoking his term of supervised release
for committing the new offense. He has not briefed, and has therefore
abandoned, any challenge to the revocation of supervised release or his
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50991       Document: 00516733489        Page: 2    Date Filed: 05/01/2023
22-50991
c/w No. 22-51010
revocation sentence. See Yohey v. Collins,
    985 F.2d 222
    , 224-25 (5th Cir.
1993).
For the first time on appeal, Hernandez Roman argues that his
sentence exceeds the statutory maximum and is therefore unconstitutional
because the district court enhanced his sentence under
    8 U.S.C. § 1326
    (b)
based on facts that were neither alleged in the indictment nor found by a jury
beyond a reasonable doubt.       While he 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.
Accordingly, Hernandez Roman has filed an unopposed motion for summary
disposition.
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). Thus, Hernandez Roman is correct that his argument is
foreclosed, and summary disposition is appropriate. See Groendyke Transp.,
Inc. v. Davis,
    406 F.2d 1158
    , 1162 (5th Cir. 1969).
Hernandez Roman’s motion is GRANTED, and the district court’s
judgments are AFFIRMED.
2