# United States Court **of Appeals**  **f or 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 sent encing, 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 Case: 21-50394 Document: 00516089461 Page: 1 Date Filed: 11/10/2021No. 2 1

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2 because it is base d on facts neither alleged in his indictment nor prove d 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. Walla ce , 759 F.3d 486, 497 (5th Cir. 2014); United States v. Rojas

Luna , 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).
T he 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**

. Case: 21-50394 Document: 00516089461 Page: 2 Date Filed: 11/10/2021No. 2 1

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3 **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 tha t 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.
I n 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 i d. 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 enhanc ement 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 Almendarez

Torres . 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. Pineda

Arrellano , 492 F.3d 624, 626 (5th Cir. 2007); but see id. at 626 (Dennis, J., concurring in a ffirming the conviction and sentence only); see also United Case: 21-50394 Document: 00516089461 Page: 3 Date Filed: 11/10/2021No. 2 1

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4 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 admoniti ons. 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 decisis should trump the constitutional rights of the accused. Compare Rangel

Reyes v. United States , 547 U.S. 1200, 1201

– 02 (2006) (Stevens, J., concurring) (agreeing that Almendarez

- Torres was wrongly de cided 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 prote ction 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 goo d 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 c orpus will not be allowed to do service for an appeal. Where Case: 21-50394 Document: 00516089461 Page: 4 Date Filed: 11/10/2021No. 2 1

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5 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 ac tual 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 in terests of their clients. Case: 21-50394 Document: 00516089461 Page: 5 Date Filed: 11/10/2021