Background
Jose Maurillio Zertuche-Reyna was convicted and sentenced for illegally reentering the United States after having been formally removed, in violation of 8 U.S.C. § 1326. The conviction originated in the U.S. District Court for the Northern District of Texas.
Zertuche-Reyna appealed his sentence, challenging the constitutionality of § 1326(b). He argued that the statute violates the Sixth Amendment because it permits sentences above the otherwise applicable statutory maximum based on facts that were neither alleged in the indictment nor found by a jury beyond a reasonable doubt.
The Court’s Holding
The Fifth Circuit summarily affirmed the district court’s judgment without oral argument or full briefing. The court found Zertuche-Reyna’s constitutional argument foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), which allows sentence enhancements in reentry cases based on prior removal facts.
The court cited its own precedent in United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019), and the Supreme Court’s recent reaffirmation of this principle in Erlinger v. United States, 602 U.S. 821, 838 (2024). Because the defendant acknowledged the issue was foreclosed by binding precedent and raised it only for preservation, summary affirmance was appropriate.
Key Takeaways
- Section 1326(b) permitting enhanced sentences based on prior removal facts does not violate the Sixth Amendment under Almendarez-Torres.
- Defendants challenging reentry sentences on this constitutional ground face summary dismissal in the Fifth Circuit.
- The issue remains preserved for potential Supreme Court reconsideration, but no circuit-level relief is available.
Why It Matters
For immigration practitioners, this summary affirmance reaffirms that Almendarez-Torres remains controlling law in the Fifth Circuit and that sentencing courts may enhance reentry sentences based on prior removal without constitutional impediment. Zertuche-Reyna’s preservation of the issue signals that defendants will continue raising this argument as a vehicle for Supreme Court review, but practitioners should not expect appellate success in the Fifth Circuit on this claim.
The decision reflects how Almendarez-Torres has remained largely stable despite the Sixth Amendment jurisprudence that followed United States v. Cunningham and other sentencing cases, creating a carve-out for immigration reentry prosecutions.