United States v. Hernandez-Cordova ( 2023 )

Case: 22-50937 Document: 00516758640 Page: 1 Date Filed: 05/22/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50937
Summary Calendar FILED
____________ May 22, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Fernando Hernandez-Cordova,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:22-CR-114-1
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
Fernando Hernandez-Cordova appeals the sentence imposed after his
guilty plea conviction for illegal reentry subsequent to removal, pursuant to
8 U.S.C. § 1326(a) and (b)(1). Hernandez-Cordova contends, for the first
time on appeal, that it violates the Constitution to treat a prior conviction that
increases the statutory maximum under § 1326(b) as a sentencing factor,
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50937 Document: 00516758640 Page: 2 Date Filed: 05/22/2023
No. 22-50937
rather than as an element of the offense. Hernandez-Cordova concedes that
this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224(1998), but he seeks to preserve the issue for future review. In addition, he
has filed an unopposed motion for summary disposition.
As Hernandez-Cordova concedes, the sole issue raised on appeal is
foreclosed by Almendarez-Torres. See United States v. Pervis, 937 F.3d 546,
553-54 (5th Cir. 2019); United States v. Wallace, 759 F.3d 486, 497 (5th Cir.
2014). Because his position “is clearly right as a matter of law so that there
can be no substantial question as to the outcome of the case,” Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), summary
disposition is proper. Accordingly, Hernandez-Cordova’s motion is
GRANTED, and the judgment of the district court is AFFIRMED.
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