Unreported / Non-Citable
Background
Carlos Cuellar-Lopez was convicted in the Western District of Texas of illegal reentry under 8 U.S.C. § 1326(a) and (b). The “(b)” subsection imposes an enhanced sentence when the defendant has a prior felony conviction, with the fact of that prior conviction increasing the statutory maximum penalty. Cuellar-Lopez was sentenced under that recidivism enhancement and appealed.
On appeal, Cuellar-Lopez raised for the first time a constitutional challenge to the § 1326(b) recidivism enhancement, arguing it was unconstitutional. He simultaneously acknowledged, however, that his argument was squarely foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), and stated his purpose was solely to preserve the issue for potential Supreme Court review. The Government moved for summary affirmance.
The Court’s Holding
A per curiam panel of Judges King, Stewart, and Ho granted the Government’s motion for summary affirmance and affirmed the district court’s judgment. The court held that Cuellar-Lopez’s sole argument on appeal was foreclosed by Almendarez-Torres, citing its own prior decision in United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019), as controlling circuit precedent to the same effect.
The court also noted the Supreme Court’s 2024 decision in Erlinger v. United States, 602 U.S. 821, 838 (2024), which reaffirmed that Almendarez-Torres remains good law as a “narrow exception” permitting judges — rather than juries — to find the fact of a prior conviction for sentencing enhancement purposes. Because the challenge was entirely foreclosed, summary affirmance was appropriate under Groendyke Transport, Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). The alternative motion for an extension of time to file a brief was denied as moot.
Key Takeaways
- Almendarez-Torres remains binding precedent: judges may continue to find the fact of a prior conviction at sentencing without submitting that question to a jury, even after Erlinger.
- The Fifth Circuit confirmed that Erlinger did not overrule or meaningfully undermine Almendarez-Torres; it described the doctrine as a persisting “narrow exception.”
- Defense counsel who wish to challenge the § 1326(b) recidivism enhancement on Sixth Amendment or Apprendi grounds must do so at the trial level and frame the argument for Supreme Court preservation, as the Fifth Circuit considers itself bound.
- Summary affirmance is available — and was granted here — when binding precedent squarely forecloses the only argument on appeal.
Why It Matters
This decision reaffirms the Fifth Circuit’s consistent position that the Almendarez-Torres prior-conviction exception to Apprendi v. New Jersey‘s jury-finding requirement is alive and well. Despite years of scholarly debate and repeated invitations for the Supreme Court to reconsider the ruling, federal courts of appeals remain bound to apply it, and the Erlinger decision — which expanded jury-finding requirements for recidivism enhancements in other contexts — did not disturb that exception.
For practitioners handling illegal reentry cases, the ruling signals that § 1326(b) recidivism enhancements will continue to withstand constitutional challenge in the Fifth Circuit absent Supreme Court intervention. Defense attorneys who believe Almendarez-Torres should be revisited must continue to raise and preserve the argument at every stage in hopes of eventual high-court review.