USA v. Covarrubias-Martinez, No. 23-40368 (5th Cir. 2023)

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Case: 23-40368 Document: 00516973176 Page: 1 Date Filed: 11/17/2023 United States Court of Appeals for the Fifth Circuit ____________ No. 23-40368 Summary Calendar ____________ United States Court of Appeals Fifth Circuit FILED November 17, 2023 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Eleuterio Covarrubias-Martinez, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 7:22-CR-1932-1 ______________________________ Before Smith, Higginson, and Engelhardt, Circuit Judges. Per Curiam:* Eleuterio Covarrubias-Martinez appeals his conviction and sentence for being found in the United States after a previous deportation. He argues that 8 U.S.C. § 1326(b) is unconstitutional because it allows a sentence above the otherwise applicable statutory maximum established by § 1326(a) based _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-40368 Document: 00516973176 Page: 2 Date Filed: 11/17/2023 No. 23-40368 on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. Covarrubias-Martinez has filed an unopposed motion for summary disposition and a letter brief correctly conceding that the only issue he raises 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). He explains that he has raised the issue to preserve it for possible further review. Accordingly, because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Covarrubias-Martinez’s motion is GRANTED, and the district court’s judgment is AFFIRMED. 2

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