USA v. Velazquez, No. 22-50806 (5th Cir. 2023)
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Case: 22-50806 Document: 00516654201 Page: 1 Date Filed: 02/23/2023 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 22-50806 Summary Calendar ____________ FILED February 23, 2023 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Crisoforo Velazquez, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 4:22-CR-155-1 ______________________________ Before Smith, Southwick, and Douglas, Circuit Judges. Per Curiam: * Crisoforo Velazquez appeals his sentence for illegal reentry under 8 U.S.C. § 1326(a) and (b)(2), arguing that § 1326(b) is unconstitutional because it permits a sentence above the otherwise-applicable statutory maximum based on facts not charged or proved beyond a reasonable doubt. He has filed an unopposed motion for summary affirmance, conceding that _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-50806 Document: 00516654201 Page: 2 Date Filed: 02/23/2023 No. 22-50806 his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and explaining that he seeks only to preserve it for further review. Because Velazquez is correct in conceding that his argument is foreclosed, see United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019), summary affirmance is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, his motion is GRANTED, and the judgment of the district court is AFFIRMED. 2
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