USA v. Lopez-Arellano, No. 23-50295 (5th Cir. 2023)

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Case: 23-50295 Document: 00516913996 Page: 1 Date Filed: 09/29/2023 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-50295 Summary Calendar ____________ FILED September 29, 2023 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Donato Lopez-Arellano, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 2:22-CR-2069-1 ______________________________ Before King, Haynes, and Graves, Circuit Judges. Per Curiam: * Donato Lopez-Arellano appeals his 27-month, above-guidelines range sentence for illegal entry following deportation, see 8 U.S.C. § 1326(a) & (b)(2), contending that it violates Apprendi v. New Jersey, 530 U.S. 466 (2000), because it is greater than the two-year statutory maximum sentence of § 1326(a) and is based on a fact—his prior conviction for an aggravated _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-50295 Document: 00516913996 Page: 2 Date Filed: 09/29/2023 No. 23-50295 felony—that was neither pleaded in the indictment nor found by a jury beyond a reasonable doubt or admitted by him in pleading guilty. LopezArellano concedes that this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and he seeks to preserve the issue for possible Supreme Court review. Accordingly, he moves for summary disposition. The Government does not oppose the motion. Lopez-Arellano is correct that his argument is foreclosed by Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019); United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014). Therefore, “there can be no substantial question as to the outcome of the case,” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), and summary disposition is proper. Accordingly, Lopez-Arellano’s motion for summary disposition is GRANTED, and the judgment is AFFIRMED. 2

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