USA v. Arroyo-Ramon, No. 22-10585 (5th Cir. 2022)

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Case: 22-10585 Document: 00516573364 Page: 1 Date Filed: 12/09/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit No. 22-10585 Summary Calendar FILED December 9, 2022 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus David Arroyo-Ramon, Defendant—Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 4:22-CR-14-1 Before Davis, Duncan, and Engelhardt, Circuit Judges. Per Curiam:* David Arroyo-Ramon appeals his conviction and sentence for illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(1). He argues that treating a prior felony conviction that increases the statutory maximum under § 1326(b) as a sentencing factor, rather than a separate element of the offense, violates the Constitution. He also argues that, for that * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-10585 Document: 00516573364 Page: 2 Date Filed: 12/09/2022 No. 22-10585 same reason, his two-year term of supervised release is unlawful. ArroyoRamon concedes that his arguments are foreclosed and indicates that he wishes to preserve them for further review. The Government has filed an unopposed motion for summary affirmance or, alternatively, for an extension of time to file a brief. The parties are correct that the issues raised on appeal are 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); United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014). Summary affirmance is therefore appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, the Government’s motion for summary affirmance is GRANTED, the Government’s alternative motion for an extension of time to file a brief is DENIED, and the district court’s judgment is AFFIRMED. 2

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