USA v. Armenta-Lopez, No. 22-50874 (5th Cir. 2023)

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Case: 22-50874 Document: 00516687338 Page: 1 Date Filed: 03/23/2023 United States Court of Appeals for the Fifth Circuit _____________ United States Court of Appeals Fifth Circuit No. 22-50874 consolidated with No. 22-50890 _____________ FILED March 23, 2023 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Edgar Ivan Armenta-Lopez, Defendant—Appellant. ______________________________ Appeals from the United States District Court for the Western District of Texas USDC Nos. 4:19-CR-438-3, 4:22-CR-230-1 ______________________________ Before Davis, Smith, and Douglas, Circuit Judges. Per Curiam: * Edgar Ivan Armenta-Lopez 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). _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-50874 Document: 00516687338 Page: 2 Date Filed: 03/23/2023 No. 22-50874 c/w No. 22-50890 On appeal, Armenta-Lopez 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 Armenta-Lopez 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 Armenta-Lopez 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, Armenta-Lopez’s motion is GRANTED, and the district court’s judgments are AFFIRMED. 2

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