USA v. Dominguez-Giron, No. 21-50849 (5th Cir. 2022)

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Case: 21-50849 Document: 00516565292 Page: 1 Date Filed: 12/02/2022 United States Court of Appeals for the Fifth Circuit No. 21-50849 Summary Calendar United States of America, United States Court of Appeals Fifth Circuit FILED December 2, 2022 Lyle W. Cayce Clerk Plaintiff—Appellee, versus Hugo Dominguez-Giron, Defendant—Appellant, consolidated with _____________ No. 21-50868 Summary Calendar _____________ United States of America, Plaintiff—Appellee, versus Victor Dominguez-Jiron, Defendant—Appellant. Case: 21-50849 Document: 00516565292 Page: 2 Date Filed: 12/02/2022 No. 21-50849 c/w No. 21-50868 Appeals from the United States District Court for the Western District of Texas USDC No. 4:21-CR-347-1 USDC No. 4:21-CR-389-1 Before Smith, Dennis, and Southwick, Circuit Judges. Per Curiam:* Hugo Dominguez-Giron appeals his sentence for illegal reentry under 8 U.S.C. § 1326(a) and (b)(2). He contends that the recidivism enhancement in § 1326(b) is unconstitutional because it permits a sentence above the otherwise-applicable maximum in § 1326(a), based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. His two-year term of imprisonment does not exceed the maximum in § 1326(a), but his three-year term of supervised release is only authorized by § 1326(b), by virtue of 18 U.S.C. §§ 3559(a)(3) and 3583(b)(2). Cf. §§ 3559(a)(5), 3583(b)(3) (setting a one-year maximum for an offense punishable under § 1326(a)). Although Dominguez-Giron acknowledges that his 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. In addition, Dominguez-Giron has filed an unopposed motion for summary disposition. He does not challenge the revocation judgment imposed in the consolidated case. This court has 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 * This opinion is not designated for publication. See 5th Cir. R. 47.5. 2 Case: 21-50849 Document: 00516565292 Page: 3 Date Filed: 12/02/2022 No. 21-50849 c/w No. 21-50868 v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019). Thus, Dominguez-Giron 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). Dominguez-Giron’s motion is GRANTED, and the judgment is AFFIRMED. 3

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