USA v. Hernandez-Correa, No. 22-50416 (5th Cir. 2022)
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Case: 22-50416 Document: 00516558591 Page: 1 Date Filed: 11/28/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit No. 22-50416 Summary Calendar FILED November 28, 2022 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Ruben Hernandez-Correa, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 7:22-CR-18-1 Before Higginbotham, Graves, and Ho, Circuit Judges. Per Curiam:* Ruben Hernandez-Correa appeals his conviction for illegal reentry and his sentence of 30 months of imprisonment and three years of supervised release. He argues for the first time on appeal that his sentence exceeds the * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 22-50416 Document: 00516558591 Page: 2 Date Filed: 11/28/2022 No. 22-50416 statutory maximum because the enhanced penalty provisions of 8 U.S.C. § 1326(b) are unconstitutional. Hernandez-Correa has filed an unopposed motion for summary disposition and a letter brief correctly conceding 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). He states that he raises the issue only to preserve it for possible further review. Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Hernandez-Correa’s motion is GRANTED, and the district court’s judgment is AFFIRMED. 2
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