USA v. Demetrio-Jimenez, No. 23-50690 (5th Cir. 2024)

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Case: 23-50688 Document: 50-1 Page: 1 Date Filed: 03/14/2024 United States Court of Appeals for the Fifth Circuit _____________ United States Court of Appeals Fifth Circuit No. 23-50688 consolidated with No. 23-50690 _____________ FILED March 14, 2024 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Rogaciano Demetrio-Jimenez, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC Nos. 4:23-CR-212-1, 4:23-CR-325-1 ______________________________ Before Wiener, Stewart, and Douglas, Circuit Judges. Per Curiam: * Defendant-Appellant Rogaciano Demetrio-Jimenez pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326 and was sentenced to 46 months of imprisonment. He appeals his sentence, arguing that the recidivism enhancement in § 1326(b) is unconstitutional because it permits a sentence _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-50688 Document: 50-1 Page: 2 Date Filed: 03/14/2024 23-50688 c/w No. 23-50690 above the otherwise-applicable statutory maximum established by § 1326(a) based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. He does not appeal the revocation of his supervised release or his revocation sentence. Although Demetrio-Jimenez acknowledges that his 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 and has filed an unopposed motion for summary disposition. 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). Thus, Demetrio-Jimenez 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). Demetrio-Jimenez’s motion is GRANTED, and the judgment is AFFIRMED. 2

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