USA v. Chairez-Avila, No. 22-50624 (5th Cir. 2023)
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Case: 22-50624 Document: 00516635723 Page: 1 Date Filed: 02/06/2023 United States Court of Appeals for the Fifth Circuit ____________ No. 22-50624 Summary Calendar ____________ United States Court of Appeals Fifth Circuit FILED February 6, 2023 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Mario Rodolfo Chairez-Avila, Defendant—Appellant, consolidated with _____________ No. 22-50629 _____________ United States of America, Plaintiff—Appellee, versus Mario Chairez-Avila, Defendant—Appellant. Case: 22-50624 Document: 00516635723 Page: 2 Date Filed: 02/06/2023 No. 22-50624 c/w No. 22-50629 Appeals from the United States District Court for the Western District of Texas USDC Nos. 4:19-CR-31-1, 4:22-CR-87-1 Before Stewart, Dennis, and Willett, Circuit Judges. Per Curiam: * Mario Rodolfo Chairez-Avila appeals his conviction and sentence for illegal reentry into the United States under 8 U.S.C. § 1326(a) and (b)(2), as well as the judgment revoking his term of supervised release for a prior offense. The latter challenge is unbriefed and thus abandoned. See United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010). For the first time on appeal, Chairez-Avila contends that the recidivism enhancement in § 1326(b) is unconstitutional because it permits a sentence above the otherwise 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. Although Chairez-Avila acknowledges that this 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 and has filed an unopposed motion for summary disposition. Because Chairez-Avila is correct that his argument is foreclosed, see United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019), summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, Chairez-Avila’s motion is GRANTED, and the district court’s judgments are AFFIRMED. _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. 2
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