Unreported / Non-Citable
Background
Josue Otero-Garay was convicted and sentenced under 8 U.S.C. § 1326(a) for illegal reentry into the United States after removal. He subsequently appealed this decision, challenging the constitutionality of the sentencing enhancement provision found in 8 U.S.C. § 1326(b).
Otero-Garay acknowledged that his constitutional argument was directly foreclosed by the U.S. Supreme Court’s precedent in *Almendarez-Torres v. United States*, 523 U.S. 224 (1998). Despite this, he sought to preserve the issue for potential further review by higher courts. In response, the Government filed an unopposed motion requesting summary affirmance of the district court’s judgment.
The Court’s Holding
The Fifth Circuit Court of Appeals granted the Government’s motion for summary affirmance, thereby upholding Otero-Garay’s conviction and sentence. The court agreed with both parties that Otero-Garay’s argument regarding the unconstitutionality of the sentencing enhancement was indeed foreclosed by existing precedent.
In its per curiam opinion, the court referenced *United States v. Pervis*, 937 F.3d 546, 553-54 (5th Cir. 2019), and noted that *Erlinger v. United States*, 602 U.S. 821, 838 (2024), explicitly reaffirmed *Almendarez-Torres* as a “narrow exception permitting judges to find only the fact of a prior conviction.” Given this clear precedent, the Fifth Circuit determined that summary affirmance was the appropriate course of action, consistent with its standard practice outlined in *Groendyke Transp., Inc. v. Davis*, 406 F.2d 1158, 1162 (5th Cir. 1969).
Consequently, the court granted the motion for summary affirmance, declared the Government’s alternative motion for an extension of time moot, and affirmed the judgment issued by the district court.
Key Takeaways
- The Fifth Circuit affirmed a defendant’s conviction and sentence for illegal reentry, explicitly rejecting a constitutional challenge to the sentencing enhancement under 8 U.S.C. § 1326(b).
- The court reaffirmed that arguments against the constitutionality of this sentencing enhancement, particularly concerning prior convictions, are foreclosed by the Supreme Court’s ruling in *Almendarez-Torres v. United States*.
- The decision cited *Erlinger v. United States*, which clarified that *Almendarez-Torres* persists as a narrow exception allowing judges to determine only the fact of a prior conviction.
- Summary affirmance is a suitable procedure when an issue on appeal is indisputably controlled by binding precedent.
Why It Matters
This decision from the Fifth Circuit reinforces the enduring precedent set by *Almendarez-Torres*, clarifying for practitioners that the constitutionality of sentencing enhancements under 8 U.S.C. § 1326(b) for prior convictions remains settled law in the circuit. For immigration and criminal defense attorneys, this means that direct challenges to this specific aspect of the statute are unlikely to succeed at the appellate level within the Fifth Circuit.
The ruling also highlights the strategic importance for defendants to preserve issues for potential review by the Supreme Court, even when circuit precedent is directly adverse. While the immediate outcome in Otero-Garay’s case was an affirmance, the act of preserving the issue ensures that if the Supreme Court were to revisit *Almendarez-Torres* in the future, the defendant’s claim would be appropriately positioned for consideration.