Background
Leo Dan Olivera-Hernandez was convicted and sentenced in the Western District of Texas for illegal reentry into the United States under 8 U.S.C. § 1326(a).
On appeal, he argued for the first time that the sentencing enhancement in § 1326(b) is unconstitutional. He acknowledged, however, that Almendarez-Torres v. United States foreclosed his argument. The government moved for summary affirmance or, alternatively, additional time to file a brief, and Olivera-Hernandez took no position on summary affirmance.
The Court’s Holding
The Fifth Circuit held that circuit precedent foreclosed Olivera-Hernandez’s constitutional challenge. It relied on United States v. Pervis and noted that Erlinger v. United States described Almendarez-Torres as a narrow exception allowing judges to find the fact of a prior conviction.
Because the claim was foreclosed, the court concluded that summary affirmance was appropriate under Groendyke Transportation, Inc. v. Davis. It granted the government’s motion for summary affirmance, denied the alternative request for more briefing time, and affirmed the district court’s judgment.
Key Takeaways
- Fifth Circuit precedent forecloses the argument that § 1326(b) is unconstitutional because it permits a judge to find the fact of a prior conviction.
- Almendarez-Torres remains a narrow exception permitting judicial findings concerning the fact of a prior conviction.
- The court may summarily affirm when binding precedent squarely resolves the appellant’s argument.
Why It Matters
The decision confirms that defendants in the Fifth Circuit cannot obtain relief on this § 1326(b) constitutional theory unless controlling precedent changes. It also illustrates that the court may resolve a plainly foreclosed claim through summary affirmance without full merits briefing.