Background
Orlando Everado Aguirre-Barra appealed his conviction and sentence for illegal reentry into the United States. For the first time on appeal, he argued that the recidivism enhancement in 8 U.S.C. § 1326(b) is unconstitutional.
The government moved for summary affirmance and, alternatively, for an extension of time. Aguirre-Barra took no position on summary affirmance but acknowledged that the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), foreclosed his argument.
The Court’s Holding
The Fifth Circuit held that circuit precedent foreclosed Aguirre-Barra’s constitutional challenge to § 1326(b), citing United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). The court therefore concluded that summary affirmance was appropriate under Groendyke Transportation, Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
The court granted the government’s motion for summary affirmance, denied its alternative motion for an extension of time, and affirmed the district court’s judgment.
Key Takeaways
- Binding precedent forecloses a Fifth Circuit challenge to the constitutionality of the recidivism enhancement in 8 U.S.C. § 1326(b).
- The court summarily affirmed because the appeal presented a legal argument controlled by existing precedent.
- The panel affirmed Aguirre-Barra’s illegal-reentry conviction and sentence without reaching a new constitutional holding.
Why It Matters
The decision confirms that defendants in the Fifth Circuit remain unable to obtain relief on the argument that § 1326(b)’s prior-conviction enhancement is unconstitutional while Almendarez-Torres and circuit precedent remain controlling.
It also illustrates the court’s use of summary affirmance when precedent squarely forecloses the appellant’s sole argument.