United States Court of Appeals

for the Fifth Circuit

No. 21-50394

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Jose Garza-De La Cruz, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:21-CR-15-1

Before King, Costa, and Ho, Circuit Judges.

Per Curiam:

Jose Garza-De La Cruz pleaded guilty to illegal reentry. The basic 

reentry crime carries a punishment of up to two years. 8 U.S.C. § 1326(a)(2). 

But if the defendant was convicted of a felony before being deported, that 

maximum becomes ten years. Id. § 1326(b)(1). At sentencing, the court used 

the ten-year maximum because of a prior conviction and sentenced Garza-De 

La Cruz to 50 months in prison. Garza-De La Cruz argues that the 

enhancement of his sentence based on the prior felony is unconstitutional 

United States Court of Appeals

Fifth Circuit

FILED

November 10, 2021

Lyle W. Cayce

Clerk

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No. 21-50394

2

because it is based on facts neither alleged in his indictment nor proved to a 

jury beyond a reasonable doubt. 

Garza-De La Cruz concedes, however, that this issue is foreclosed by 

Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998). See United 

States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. RojasLuna, 522 F.3d 502, 505-06 (5th Cir. 2008). Because of that binding 

Supreme Court precedent, the government seeks summary affirmance. See 

Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). 

The Government’s motion for summary affirmance is GRANTED, 

the Government’s alternative motion for an extension of time to file a brief is 

DENIED, and the judgment of the district court is AFFIRMED.

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Gregg Costa and James C. Ho, Circuit Judges, joined by King, 

Circuit Judge, concurring:

Our court has issued countless orders in cases like this one. A criminal 

defendant argues that his sentence is inconsistent with the original 

understanding of the Fifth and Sixth Amendments of the Constitution, 

because it includes a sentencing enhancement predicated on evidence not 

presented to a jury, let alone proven beyond a reasonable doubt.

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court 

held that “any fact that increases the penalty for a crime beyond the 

prescribed statutory maximum must be submitted to a jury, and proved 

beyond a reasonable doubt.” Id. at 490. See also id. at 498 (Scalia, J., 

concurring); id. at 499 (Thomas, J., concurring). But there is a significant 

exception to this requirement. Under Almendarez-Torres v. United States, 523 

U.S. 224 (1998), the government need not submit to a jury a sentencing 

enhancement that turns on the fact of a defendant’s prior criminal 

conviction.

As a result, we routinely issue orders, such as this one we issue today, 

summarily denying a claim on the ground that it is foreclosed by AlmendarezTorres. As is true here, the defendant usually recognizes that he cannot obtain 

any relief from our court but notes he is raising the claim in order to preserve 

it for consideration by the one court that can overrule Almendarez-Torres.

On occasion, a panel of our court will admonish “appellants and their 

counsel not to damage their credibility with this court” by bringing such 

claims, notwithstanding Almendarez-Torres, in order to preserve them for 

future Supreme Court consideration. See, e.g., United States v. PinedaArrellano, 492 F.3d 624, 626 (5th Cir. 2007); but see id. at 626 (Dennis, J., 

concurring in affirming the conviction and sentence only); see also United 

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States v. Contreras-Rojas, _ F.4th _, _, 2021 WL 5027456, at *1 (5th Cir. 

2021) (“We meant it then and mean it now.”).

We write separately today to make clear that we do not join in these 

admonitions. To the contrary, we recognize that members of the Supreme 

Court, including one who joined the majority opinion, have concluded that 

Almendarez-Torres was wrongly decided—and that the only issue is whether 

the Court should overturn Almendarez-Torres, or whether principles of stare 

decisisshould trump the constitutional rights of the accused. Compare RangelReyes v. United States, 547 U.S. 1200, 1201–02 (2006) (Stevens, J., 

concurring) (agreeing that Almendarez-Torres was wrongly decided but 

refusing to reverse it on grounds of stare decisis), with id. at 1202–03 (Thomas, 

J., dissenting) (urging the Court to overrule Almendarez-Torres on the ground 

that it is wrong to allow “countless criminal defendants [to] be denied the full 

protection afforded by the Fifth and Sixth Amendments, notwithstanding the 

agreement of a majority of the Court that this result is unconstitutional”). 

See also Gamble v. United States, 139 S. Ct. 1960, 1984 (2019) (Thomas, J., 

concurring) (“When faced with a demonstrably erroneous precedent, my 

rule is simple: We should not follow it.”).

So it is well within reason for litigants to ask whether the Supreme 

Court would reconsider Almendarez-Torres today. “[P]arties may . . . litigate 

in anticipation of” “a good faith expectation of legal change.” Jackson 

Women’s Health Org. v. Dobbs, 945 F.3d 265, 277 (5th Cir. 2019) (Ho, J., 

concurring in the judgment), cert. granted, 141 S. Ct. 2619 (2021).

Perhaps the Supreme Court will one day take up the call to overturn 

Almendarez-Torres. Perhaps not. But preserving one’s rights just in case is 

not just reasonable. Failure to do so risks forfeiting the right altogether. See, 

e.g., Reed v. Farley, 512 U.S. 339, 354 (1994) (“The general rule is that the 

writ of habeas corpus will not be allowed to do service for an appeal. Where 

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the petitioner—whether a state or federal prisoner—failed properly to raise 

his claim on direct review, the writ is available only if the petitioner 

establishes cause for the waiver and shows actual prejudice resulting from the 

alleged violation.”) (cleaned up).

We see nothing wrong with litigants diligently taking whatever steps 

they deem necessary to preserve their legal rights. We express no frustration 

with lawyers zealously defending the interests of their clients. 

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