USA v. Manriquez-Gutierrez, No. 22-50791 (5th Cir. 2023)
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Case: 22-50791 Document: 00516666417 Page: 1 Date Filed: 03/06/2023 United States Court of Appeals for the Fifth Circuit _____________ United States Court of Appeals Fifth Circuit No. 22-50791 consolidated with No. 22-50799 Summary Calendar _____________ FILED March 6, 2023 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Jose Luis Manriquez-Gutierrez, Defendant—Appellant. ______________________________ Appeals from the United States District Court for the Western District of Texas USDC No. 4:22-CR-106-1 USDC No. 4:22-CR-176-1 ______________________________ Before Stewart, Duncan, and Wilson, Circuit Judges. Per Curiam: * Jose Luis Manriquez-Gutierrez appeals his conviction and sentence for illegal entry into the United States after deportation under 8 U.S.C. § 1326(a) and (b)(1). He renews his argument that the recidivism _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-50791 Document: 00516666417 Page: 2 Date Filed: 03/06/2023 22-50791 c/w No. 22-50799 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. While Manriquez-Gutierrez acknowledges 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. In addition, Manriquez-Gutierrez has filed an unopposed motion for summary disposition. This court has held that subsequent Supreme Court decisions such as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), did not overrule Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Thus, Manriquez-Gutierrez is correct that his argument is foreclosed, and summary disposition is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). As Manriquez-Gutierrez raises no issue with respect to the revocation of his supervised release, he has abandoned any challenge to the revocation or revocation sentence. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Manriquez-Gutierrez’s motion is GRANTED, and the district court’s judgment is AFFIRMED. 2
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