USA v. Gallegos-Hernandez, No. 22-50710 (5th Cir. 2023)

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Case: 22-50708 Document: 00516657999 Page: 1 Date Filed: 02/27/2023 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 22-50708 consolidated with No. 22-50710 _____________ FILED February 27, 2023 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Jose Carlos Gallegos-Hernandez, Defendant—Appellant. ______________________________ Appeals from the United States District Court for the Western District of Texas USDC Nos. 4:22-CR-148-1, 7:13-CR-324-1 ______________________________ Before Wiener, Elrod, and Engelhardt, Circuit Judges. Per Curiam: * Jose Carlos Gallegos-Hernandez appeals his conviction and sentence for illegal reentry after removal under 8 U.S.C. §§ 1326(a) and (b)(2), along with the revocation of supervised release he was serving at the time of the offense. He has not briefed, and has therefore abandoned, any challenge to _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-50708 Document: 00516657999 Page: 2 Date Filed: 02/27/2023 No. 22-50708 c/w No. 22-50710 the supervised release revocation and sentence. See United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010). Gallegos-Hernandez argues that § 1326(b) is unconstitutional because it permits a defendant to be sentenced above the statutory maximum under § 1326(a) based on the fact of a prior conviction that was not alleged in the indictment or found by a jury beyond a reasonable doubt. He 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). Gallegos-Hernandez states that he has raised 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), Gallegos-Hernandez’s motion is GRANTED, and the district court’s judgments are AFFIRMED. 2

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