Background
Josue Otero-Garay was convicted and sentenced under 8 U.S.C. § 1326(a) for illegally reentering the United States after removal.
On appeal, Otero-Garay argued that the sentencing enhancement in § 1326(b) is unconstitutional. He acknowledged that Almendarez-Torres v. United States foreclosed the argument and raised it to preserve the issue for further review. The government filed an unopposed motion for summary affirmance or, alternatively, additional time to file a brief.
The Court’s Holding
The Fifth Circuit held that binding precedent foreclosed Otero-Garay’s constitutional challenge. It explained that Almendarez-Torres remains a narrow exception allowing a judge to find the fact of a prior conviction for sentencing purposes.
Concluding that summary disposition was appropriate, the court granted the government’s motion for summary affirmance and affirmed the district court’s judgment. It denied the alternative request for additional briefing time as moot.
Key Takeaways
- Almendarez-Torres continues to foreclose Fifth Circuit challenges to § 1326(b) based on judicial findings of prior convictions.
- A defendant may acknowledge controlling precedent while preserving a constitutional argument for further review.
- The court used summary affirmance because the result was controlled by existing precedent.
Why It Matters
The unpublished decision confirms that, in the Fifth Circuit, the fact of a prior conviction remains within the narrow Almendarez-Torres exception and may support an enhanced illegal-reentry sentence without being submitted to a jury.