USA v. Rodriguez-Gill, No. 22-50628 (5th Cir. 2022)
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Case: 22-50627 Document: 00516584991 Page: 1 Date Filed: 12/20/2022 United States Court of Appeals for the Fifth Circuit ____________ No. 22-50627 Summary Calendar ____________ United States of America, United States Court of Appeals Fifth Circuit FILED December 20, 2022 Lyle W. Cayce Clerk Plaintiff—Appellee, versus Trinidad Rodriguez-Gil, Defendant—Appellant, consolidated with _____________ No. 22-50628 _____________ United States of America, Plaintiff -Appellee, versus Trinidad Rodriguez-Gill, Defendant—Appellant. Case: 22-50627 Document: 00516584991 Page: 2 Date Filed: 12/20/2022 No. 22-50627 c/w No. 22-50628 ______________________________ Appeal from the United States District Court for the Western District of Texas USDC Nos. 4:22-CR-95-1, 4:19-CR-336-3 ______________________________ Before Stewart, Duncan, and Wilson, Circuit Judges. Per Curiam: * Trinidad Rodriguez-Gil appeals his conviction and sentence for illegal reentry after removal, as well as the judgment revoking his term of supervised release for a prior offense. He has not briefed, and has therefore abandoned, any challenge to the revocation of supervised release or his revocation sentence. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). For the first time on appeal, Rodriguez-Gil argues that his sentence exceeds the statutory maximum and is therefore unconstitutional because the district court enhanced his sentence under 8 U.S.C. § 1326(b) based on facts that were neither alleged in the indictment nor found by a jury beyond a reasonable doubt. While he 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, Rodriguez-Gil has filed an unopposed motion for summary disposition. 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, Rodriguez-Gil 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). _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. 2 Case: 22-50627 Document: 00516584991 Page: 3 Date Filed: 12/20/2022 No. 22-50627 c/w No. 22-50628 Rodriguez-Gil’s motion for summary disposition is GRANTED, and the district court’s judgments are AFFIRMED. 3
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