Unreported / Non-Citable
Background
German Nahun Andino-Ortega appealed his conviction and sentence for illegally reentering the United States. He also appealed the revocation of supervised release imposed in an earlier criminal case, although he raised no challenge to the revocation judgment.
For the first time on appeal, Andino-Ortega argued that the sentencing enhancement in 8 U.S.C. § 1326(b) was unconstitutional. The government moved for summary affirmance or, alternatively, an extension of time to file a brief. Andino-Ortega did not oppose summary affirmance and acknowledged that Almendarez-Torres v. United States foreclosed his argument.
The Court’s Holding
The Fifth Circuit held that binding precedent foreclosed Andino-Ortega’s constitutional challenge. Almendarez-Torres permits a judge to find the fact of a prior conviction for sentencing purposes, and the court noted that the Supreme Court continued to recognize that narrow exception in Erlinger v. United States.
Because the sole argument concerning the new conviction was foreclosed and Andino-Ortega presented no challenge to the revocation judgment, the court granted summary affirmance and affirmed the judgment. It denied the government’s alternative motion for an extension of time.
Key Takeaways
- Almendarez-Torres remains binding precedent permitting judges to find the fact of a prior conviction for purposes of 8 U.S.C. § 1326(b).
- A constitutional argument expressly foreclosed by controlling precedent may be resolved through summary affirmance.
- The court affirmed both the illegal-reentry judgment and the unchallenged supervised-release revocation judgment.
Why It Matters
The decision confirms that Fifth Circuit defendants remain bound by the prior-conviction exception recognized in Almendarez-Torres, despite later developments in the Supreme Court’s jury-trial jurisprudence. Unless the Supreme Court overrules that precedent, a challenge to § 1326(b) based solely on judicial determination of a prior conviction remains foreclosed in the circuit.