Unreported / Non-Citable
Background
Francisco Rodriguez-Saldana was convicted in the Western District of Texas of illegal reentry under 8 U.S.C. § 1326(a) and (b). The statute imposes an enhanced sentence when a defendant’s prior removal followed a felony conviction. Rodriguez-Saldana did not challenge the sentencing enhancement at the district court level.
On appeal, Rodriguez-Saldana raised for the first time a constitutional challenge to the § 1326(b) enhancement, arguing that the prior-conviction fact used to increase his sentence should have been submitted to a jury. He conceded, however, that his argument was foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), and stated he was raising the issue solely to preserve it for potential Supreme Court review. The Government moved for summary affirmance.
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 Rodriguez-Saldana’s constitutional argument was squarely foreclosed by Almendarez-Torres, which remains binding Supreme Court precedent establishing a narrow exception that permits judges — rather than juries — to find the fact of a prior conviction for sentencing purposes.
The court cited its own prior decision in United States v. Pervis, 937 F.3d 546 (5th Cir. 2019), confirming that the Almendarez-Torres exception remains controlling in the Fifth Circuit. It also noted the Supreme Court’s 2024 decision in Erlinger v. United States, 602 U.S. 821 (2024), which reaffirmed that Almendarez-Torres “persists as a narrow exception” limited to the fact of a prior conviction. Because the sole argument on appeal was foreclosed, the court found summary affirmance appropriate under Groendyke Transportation, Inc. v. Davis, 406 F.2d 1158 (5th Cir. 1969).
Key Takeaways
- Almendarez-Torres remains binding precedent: judges may find the fact of a prior conviction at sentencing without submitting the question to a jury, even after Erlinger.
- The Fifth Circuit will summarily affirm when a defendant’s sole appellate argument is concededly foreclosed by existing Supreme Court authority.
- Defendants wishing to preserve Almendarez-Torres challenges for Supreme Court review must do so expressly, as Rodriguez-Saldana did here, but the Fifth Circuit will not entertain the merits of the argument.
Why It Matters
This decision reinforces that Almendarez-Torres continues to govern illegal reentry sentencing in the Fifth Circuit despite ongoing academic and judicial debate about whether its prior-conviction exception survives the line of Sixth Amendment cases running from Apprendi v. New Jersey through Erlinger. Defense counsel seeking to challenge § 1326(b) enhancements on constitutional grounds have no traction in the circuit courts until the Supreme Court revisits or overrules Almendarez-Torres.
The case also illustrates the Fifth Circuit’s use of summary affirmance as a procedural tool to resolve appeals that present no live legal question — an efficient mechanism that disposes of foreclosed arguments without requiring the Government to file a full merits brief.