USA v. Hernandez-Cuevas, No. 22-50353 (5th Cir. 2022)
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Case: 22-50353 Document: 00516577793 Page: 1 Date Filed: 12/14/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 22-50353 Summary Calendar December 14, 2022 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Francisco Javier Hernandez-Cuevas, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-1016-1 Before Jolly, Jones, and Ho, Circuit Judges. Per Curiam:* Francisco Javier Hernandez-Cuevas appeals his conviction for illegal reentry and his sentence of 16 months of imprisonment and three years of supervised release. He argues for the first time on appeal that 8 U.S.C. § 1326(b) is unconstitutional because it permits the increase of a sentence beyond the otherwise-applicable statutory maximum based on facts that are * This opinion is not designated for publication. See 5th Circuit Rule 47.5. Case: 22-50353 Document: 00516577793 Page: 2 Date Filed: 12/14/2022 No. 22-50353 neither charged in the indictment nor found by a jury beyond a reasonable doubt. Hernandez-Cuevas has filed an unopposed motion for summary disposition and a letter brief correctly conceding 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). He states that he raises the issue only to preserve it for possible further review. Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Hernandez-Cuevas’s motion is GRANTED, and the district court’s judgment is AFFIRMED. 2
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