USA v. Rolando-Padilla, No. 23-50306 (5th Cir. 2023)

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Case: 23-50306 Document: 00516999024 Page: 1 Date Filed: 12/12/2023 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-50306 Summary Calendar ____________ FILED December 12, 2023 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Melvin Rolando-Padilla, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 2:22-CR-1151-1 ______________________________ Before Davis, Haynes, and Ho, Circuit Judges. Per Curiam: * Melvin Rolando-Padilla appeals the sentence imposed following his conviction for illegal reentry into the United States in violation of 8 U.S.C. § 1326(a). He contends for the first time on appeal that the sentencing enhancement in § 1326(b) is unconstitutional because it permits a sentence above the otherwise applicable statutory maximum established by § 1326(a) _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-50306 Document: 00516999024 Page: 2 Date Filed: 12/12/2023 No. 23-50306 based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. Rolando-Padilla has filed an unopposed motion for summary disposition acknowledging that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and explaining that he seeks to preserve it for possible Supreme Court review. 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). Rolando-Padilla is, therefore, correct that his argument is foreclosed. Accordingly, because summary disposition is appropriate, see Groendyke Transp. Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the motion is GRANTED, and the district court’s judgment is AFFIRMED. 2

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