USA v. Oliva-Santos, No. 21-51073 (5th Cir. 2022)
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Case: 21-51073 Document: 00516273979 Page: 1 Date Filed: 04/08/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED April 8, 2022 No. 21-51073 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Rodolfo Oliva-Santos, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-427-1 Before Jolly, Willett, and Engelhardt, Circuit Judges. Per Curiam:* Rodolfo Oliva-Santos appeals his conviction and sentence for illegal reentry after removal in violation of 8 U.S.C. § 1326(a) and (b)(2). He contends that the enhancement of his illegal reentry sentence pursuant to § 1326(b) was unconstitutional because the fact of his prior conviction was * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 21-51073 Document: 00516273979 Page: 2 Date Filed: 04/08/2022 No. 21-51073 not charged in his indictment or proved to a jury beyond a reasonable doubt. He has filed an unopposed motion for summary disposition and a letter brief explaining that he has raised this issue only to preserve it for further review and conceding correctly 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). Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), OlivaSantos’s motion is GRANTED, and the district court’s judgment is AFFIRMED. 2
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