Background
German Nahun Andino-Ortega appealed his conviction and sentence for illegal reentry into the United States. He also appealed the revocation of supervised release imposed in an earlier case.
For the first time on appeal, Andino-Ortega argued that the sentencing enhancement in 8 U.S.C. § 1326(b) is unconstitutional. He raised no challenge to the supervised-release revocation judgment and acknowledged that Almendarez-Torres v. United States foreclosed his constitutional argument.
The Court’s Holding
The Fifth Circuit held that Andino-Ortega’s challenge to § 1326(b) was foreclosed by Almendarez-Torres and circuit precedent. The court also cited Erlinger v. United States, which described Almendarez-Torres as a narrow exception allowing judges to find the fact of a prior conviction.
Because controlling precedent resolved the only argument presented, the court granted the government’s motion for summary affirmance and affirmed the judgment. It denied the government’s alternative motion for an extension of time to file a brief.
Key Takeaways
- Almendarez-Torres continues to foreclose constitutional challenges to § 1326(b) based on judicial findings of prior convictions.
- The Fifth Circuit may summarily affirm when controlling precedent resolves the appellant’s argument.
- Andino-Ortega did not challenge the supervised-release revocation judgment.
Why It Matters
The decision confirms that, in the Fifth Circuit, defendants remain bound by the narrow prior-conviction exception recognized in Almendarez-Torres unless the Supreme Court changes that precedent.
It also illustrates that an appeal presenting only a concededly foreclosed issue may be resolved through summary affirmance without full briefing.