Unreported / Non-Citable
Background
Ronald Fabricio Herrera-Gonzalez was convicted of illegal reentry under 8 U.S.C. § 1326(a) in the Western District of Texas and also had his supervised release revoked in a prior case. He appealed both the conviction and sentence, though he raised no challenge to the revocation judgment.
On appeal, Herrera-Gonzalez argued for the first time that the sentencing enhancement provision of 8 U.S.C. § 1326(b) — which increases penalties for illegal reentry based on prior criminal convictions — is unconstitutional. He acknowledged, however, that his argument was foreclosed by existing precedent and raised the issue solely to preserve it for potential further review. The Government moved for summary affirmance.
The Court’s Holding
The Fifth Circuit granted the Government’s motion and summarily affirmed both judgments. The court held that Herrera-Gonzalez’s constitutional challenge to § 1326(b) is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), which established that a sentencing judge may find the fact of a prior conviction without submitting that question to a jury.
The court relied on its own precedent in United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019), and noted that the Supreme Court’s 2024 decision in Erlinger v. United States, 602 U.S. 821 (2024), reaffirmed that Almendarez-Torres persists as a narrow exception permitting judges — rather than juries — to find only the fact of a prior conviction. The alternative motion for an extension of time to file a brief was denied as moot.
Key Takeaways
- Almendarez-Torres remains controlling precedent in the Fifth Circuit: judges may find prior convictions at sentencing for purposes of the § 1326(b) enhancement without a jury determination.
- The Supreme Court’s Erlinger decision (2024) did not disturb Almendarez-Torres; it characterized it as a still-intact “narrow exception” to the general Apprendi rule.
- Defendants who raise this foreclosed argument on appeal preserve it for Supreme Court review but will not succeed at the circuit level under current binding authority.
Why It Matters
This per curiam opinion illustrates the continued vitality of the Almendarez-Torres exception in illegal reentry prosecutions. Despite years of academic and advocacy pressure to overrule it — and Justice Thomas’s long-running concurrence-based critiques — the prior-conviction exception remains intact, and circuit courts continue to enforce it summarily.
For practitioners, the case is a reminder that § 1326(b) sentencing challenges based on Sixth Amendment jury-trial grounds are dead on arrival in the Fifth Circuit (and other circuits), and that Erlinger did not open a new avenue to relitigate the issue. Defendants wishing to preserve the argument must do so expressly, as Herrera-Gonzalez did here, in hopes of eventual Supreme Court reconsideration.