USA v. Damaso-Sixtos, No. 23-50344 (5th Cir. 2023)

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Case: 23-50344 Document: 00516999969 Page: 1 Date Filed: 12/13/2023 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-50344 Summary Calendar ____________ FILED December 13, 2023 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Bartolo Damaso-Sixtos, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 2:22-CR-1500-1 ______________________________ Before Wiener, Stewart, and Douglas, Circuit Judges. Per Curiam: * Defendant-Appellant Bartolo Damaso-Sixtos appeals his conviction and sentence under 8 U.S.C. § 1326 for illegal entry into the United States after removal. He argues for the first time on appeal that § 1326(b) is unconstitutional because it permits a sentence above the otherwiseapplicable statutory maximum established by § 1326(a) based on facts that _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-50344 Document: 00516999969 Page: 2 Date Filed: 12/13/2023 No. 23-50344 are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. Damaso-Sixtos has filed an unopposed motion for summary disposition. He acknowledges that his argument is foreclosed by AlmendarezTorres v. United States, 523 U.S. 224 (1998), but he seeks to preserve the argument for possible Supreme Court review. This court has held that 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); United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014). Damaso-Sixtos is therefore correct that his argument is foreclosed and that summary disposition is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Damaso-Sixtos’s unopposed motion for summary disposition is GRANTED, and the district court’s judgment is AFFIRMED. 2

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