Unreported / Non-Citable
Background
Jose Maurillio Zertuche-Reyna appealed his sentence for illegal reentry into the United States after having been removed, a violation of 8 U.S.C. § 1326. The conviction arose from the U.S. District Court for the Northern District of Texas (Case No. 3:25-CR-61-1).
On appeal, Zertuche-Reyna challenged the constitutionality of § 1326(b), arguing that it violates due process by allowing courts to impose sentences above the otherwise applicable statutory maximum based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. He contended that such sentence enhancements lack the procedural safeguards required for increasing criminal penalties.
The defendant acknowledged that his argument was foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but raised the issue solely to preserve it for further appellate 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. The panel held that Zertuche-Reyna’s constitutional challenge to § 1326(b) was foreclosed by established Supreme Court precedent, specifically Almendarez-Torres and the more recent decision in Erlinger v. United States, 602 U.S. 821 (2024).
The court found that prior removal from the United States constitutes a permissible basis for sentence enhancement under § 1326(b) without violating the Fifth and Sixth Amendments, even though the enhancement raises the sentence above the statutory maximum. The prior removal status need not be alleged in the indictment or proved to a jury beyond a reasonable doubt, as the Supreme Court has already resolved this constitutional question in favor of the Government.
Key Takeaways
- § 1326(b) is constitutional and permits sentence enhancements for illegal reentry based on prior removal status.
- Prior removal facts need not be alleged in the indictment or established by jury verdict beyond a reasonable doubt to support a sentence above the statutory maximum.
- Arguments challenging § 1326(b) on these grounds are foreclosed by Almendarez-Torres and cannot succeed on appeal.
- Summary affirmance is appropriate when an appellant’s sole argument is foreclosed by controlling precedent.
Why It Matters
This decision reinforces the federal government’s broad authority to penalize illegal reentry and maintain enhanced sentencing for repeat offenders. Immigration judges, prosecutors, and enforcement agencies can rely on prior removal determinations—regardless of whether those removals resulted from criminal conviction or civil deportation proceedings—to support increased criminal sentences without additional procedural requirements.
For defense practitioners, the decision confirms the foreclosed nature of constitutional challenges to § 1326(b)’s sentencing framework at this stage of appellate development. Defendants challenging these provisions must await potential Supreme Court reconsideration or changes in constitutional doctrine rather than seek reversal through traditional appellate arguments in the circuits.