Unreported / Non-Citable
Background
Orlando Everado Aguirre-Barra appealed from his conviction and sentence for illegal reentry into the United States in the Western District of Texas.
For the first time on appeal, Aguirre-Barra argued that the recidivism enhancement in 8 U.S.C. § 1326(b) is unconstitutional. The government moved for summary affirmance. Aguirre-Barra took no position on that motion and acknowledged that Almendarez-Torres v. United States foreclosed his argument.
The Court’s Holding
The Fifth Circuit held that circuit precedent foreclosed Aguirre-Barra’s constitutional challenge to § 1326(b), citing United States v. Pervis. Because the governing law resolved the issue against him, the court concluded that summary affirmance was appropriate.
The court granted the government’s motion for summary affirmance, denied its alternative motion for an extension of time, and affirmed the district court’s judgment.
Key Takeaways
- Almendarez-Torres remains controlling over constitutional challenges to the recidivism enhancement in 8 U.S.C. § 1326(b).
- Fifth Circuit precedent foreclosed Aguirre-Barra’s challenge to his illegal-reentry sentence.
- The court disposed of the appeal through summary affirmance because existing precedent squarely resolved the issue.
Why It Matters
The decision confirms that defendants in the Fifth Circuit cannot obtain relief on the argument that § 1326(b)’s recidivism enhancement is unconstitutional while Almendarez-Torres and the circuit’s implementing precedent remain binding.
It also illustrates the court’s willingness to use summary affirmance when an appellant raises a legal issue that controlling precedent clearly forecloses.