USA v. Varela-Mejia, No. 21-51184 (5th Cir. 2022)

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Case: 21-51184 Document: 00516512028 Page: 1 Date Filed: 10/18/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit No. 21-51184 Summary Calendar FILED October 18, 2022 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Ulises Varela-Mejia, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 2:20-CR-1185-1 Before Jolly, Jones, and Ho, Circuit Judges. Per Curiam:* Ulises Varela-Mejia appeals his conviction and sentence for illegal reentry into the United States under 8 U.S.C. § 1326. For the first time on appeal, Varela-Mejia contends that the recidivism enhancement in § 1326(b) is unconstitutional because it permits a sentence above the otherwise- * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-51184 Document: 00516512028 Page: 2 Date Filed: 10/18/2022 No. 21-51184 applicable statutory maximum established by § 1326(a) based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. He has filed an unopposed motion for summary disposition and a letter brief in which he concedes that his claim is foreclosed and asserts that he has raised the issue only to preserve it for further review. As Varela-Mejia concedes, the sole issue that he raises on appeal 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), the motion is GRANTED, and the judgment of the district court is AFFIRMED. 2

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