USA v. Gomez-Izazaga, No. 22-50905 (5th Cir. 2023)
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Case: 22-50905 Document: 00516679248 Page: 1 Date Filed: 03/16/2023 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 22-50905 Summary Calendar ____________ FILED March 16, 2023 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Ediberto Gomez-Izazaga, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 4:22-CR-359-1 ______________________________ Before Davis, Smith, and Douglas, Circuit Judges. Per Curiam: * Ediberto Gomez-Izazaga appeals his sentence for illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2). In his sole issue on appeal, GomezIzazaga argues that § 1326(b) is unconstitutional because it permits a sentence above the otherwise-applicable statutory maximum based on facts that are neither alleged in the indictment nor found by a jury beyond a _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-50905 Document: 00516679248 Page: 2 Date Filed: 03/16/2023 No. 22-50905 reasonable doubt. He has filed an unopposed motion for summary disposition and a letter brief explaining that he has raised this issue only to preserve it for further review and conceding correctly that his argument 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). Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Gomez-Izazaga’s motion is GRANTED, and the district court’s judgment is AFFIRMED. 2
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