Unreported / Non-Citable
Background
Leo Dan Olivera-Hernandez was convicted and sentenced in the Western District of Texas for illegal reentry into the United States under 8 U.S.C. § 1326(a).
On appeal, Olivera-Hernandez argued for the first time that the sentencing enhancement in § 1326(b) is unconstitutional. He acknowledged that the Supreme Court’s decision in Almendarez-Torres v. United States foreclosed his argument. The government moved for summary affirmance or, alternatively, additional time to file a brief.
The Court’s Holding
The Fifth Circuit held that Olivera-Hernandez’s constitutional challenge was foreclosed by circuit precedent applying Almendarez-Torres. That decision remains a narrow exception permitting a judge to find the fact of a prior conviction without submitting that issue to a jury.
Because controlling precedent foreclosed the sole appellate argument, the court concluded that summary affirmance was appropriate. It granted the government’s motion for summary affirmance, denied the alternative request for additional briefing time, and affirmed the district court’s judgment.
Key Takeaways
- Almendarez-Torres continues to permit judges to find the fact of a prior conviction for purposes of § 1326(b).
- The Fifth Circuit remains bound by precedent rejecting constitutional challenges to § 1326(b) on that basis.
- When controlling precedent forecloses the only issue presented, the court may resolve the appeal through summary affirmance.
Why It Matters
The decision confirms that defendants in the Fifth Circuit cannot presently obtain relief by arguing that § 1326(b) is unconstitutional because a judge, rather than a jury, determines the existence of a prior conviction. Unless the Supreme Court revisits Almendarez-Torres, that prior-conviction exception remains controlling.