Unreported / Non-Citable
Background
Francisco Marte-Roble was convicted in the Western District of Texas of illegal reentry into the United States under 8 U.S.C. § 1326. At sentencing, the district court applied the statutory sentencing enhancement under § 1326(b), which increases the maximum penalty for defendants with prior felony or aggravated felony convictions. Marte-Roble did not challenge the enhancement at the district court level.
On appeal, Marte-Roble raised for the first time a constitutional challenge to § 1326(b), arguing that the sentencing enhancement was unconstitutional. He simultaneously conceded, however, that his argument was directly foreclosed by the Supreme Court’s holding in Almendarez-Torres v. United States, 523 U.S. 224 (1998). The government responded by moving for summary affirmance, or in the alternative, an extension of time to file a full appellate brief.
The Court’s Holding
The Fifth Circuit granted the government’s motion for summary affirmance and affirmed the district court’s judgment without full briefing. The court held that Marte-Roble’s constitutional challenge to § 1326(b) is foreclosed by binding precedent — specifically Almendarez-Torres and the Fifth Circuit’s own decision in United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019).
The court also noted the Supreme Court’s recent reaffirmation in Erlinger v. United States, 602 U.S. 821, 838 (2024), that Almendarez-Torres “persists as a narrow exception permitting judges to find only the fact of a prior conviction.” Because the government’s position was clearly correct as a matter of law with no substantial question as to the outcome, summary affirmance was appropriate under the standard set out in Groendyke Transport, Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Key Takeaways
- The Almendarez-Torres prior-conviction exception remains binding law: judges may find the fact of a prior conviction at sentencing without submitting it to a jury, and challenges to § 1326(b) on that basis continue to fail in the Fifth Circuit.
- The Supreme Court’s 2024 decision in Erlinger did not overrule Almendarez-Torres; it explicitly described the prior-conviction exception as a narrow but surviving rule.
- The Fifth Circuit will grant summary affirmance — bypassing full briefing — where an appeal presents no substantial legal question because controlling precedent clearly dictates the result.
Why It Matters
Defendants convicted of illegal reentry have repeatedly sought to chip away at the § 1326(b) enhancement by arguing that any fact increasing the statutory maximum must be found by a jury under Apprendi v. New Jersey. This decision is a reminder that the prior-conviction exception of Almendarez-Torres remains firmly intact in the Fifth Circuit, and that arguments relying on its erosion — even in light of subsequent Supreme Court decisions like Erlinger — will not gain traction.
For practitioners, the case also illustrates the Fifth Circuit’s willingness to use the summary affirmance procedure to dispose of legally foreclosed appeals efficiently, denying the government any need to file a full brief where the outcome is not genuinely in doubt.