USA v. Baten-Sarat, No. 23-50335 (5th Cir. 2023)

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Case: 23-50335 Document: 00516952265 Page: 1 Date Filed: 11/01/2023 United States Court of Appeals for the Fifth Circuit _____________ United States Court of Appeals Fifth Circuit No. 23-50335 consolidated with No. 23-50347 Summary Calendar _____________ FILED November 1, 2023 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Elias Marcelino Baten-Sarat, Defendant—Appellant. ______________________________ Appeals from the United States District Court for the Western District of Texas USDC Nos. 4:22-CR-805-1, 4:22-CR-801-1 ______________________________ Before Smith, Higginson, and Engelhardt, Circuit Judges. Per Curiam: * Elias Marcelino Baten-Sarat appeals his conviction and sentence under 8 U.S.C. § 1326 for illegal entry into the United States after removal. He also appeals the revocation of a previously imposed term of supervised release. He argues for the first time on appeal that § 1326(b) is _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-50335 Document: 00516952265 Page: 2 Date Filed: 11/01/2023 23-50335 c/w No. 23-50347 unconstitutional. Baten-Sarat has filed an unopposed motion for summary disposition acknowledging that his argument is foreclosed by AlmendarezTorres v. United States, 523 U.S. 224 (1998), and explaining that he seeks to preserve it for possible Supreme Court review. This court has held that subsequent Supreme Court decisions such as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), did not overrule Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Thus, Baten-Sarat is correct that his argument is foreclosed, and summary disposition is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Baten-Sarat’s motion is GRANTED, and the district court’s judgments are AFFIRMED. 2

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