Court of Appeals for the Fifth Circuit

United States v. Hernandez-Gallardo

226 F. App'x 432

May 2, 2007 · Docket 06-50987

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Headnotes

Generated summaries

Headnote 1
22.17 Criminal Law > General Principles of Criminal Liability Law
The Fifth Circuit notes that the Supreme Court held the subsection merely adds a penalty to an illegal‑reentry conviction and does not create an independent crime.
Headnote 2
22.17 Criminal Law > General Principles of Criminal Liability Law
The statute may be used only to enhance the punishment for an underlying illegal‑reentry conviction; it cannot support an independent criminal judgment.
Headnote 3
22.17 Criminal Law > General Principles of Criminal Liability Law
Applying the penalty‑provision rule, the appellate court granted the government’s summary‑affirmance motion, affirming the district court’s judgment only because the conviction was improper.
Headnote 4
22.17.10 Criminal Law > General Principles of Criminal Liability Law > Mens Rea Law
The court relies on Almendarez‑Torres, which held that §1326(b)(2) is not a distinct crime but a sentencing enhancement, so any argument for a standalone conviction is foreclosed.
Headnote 5
22.17.10 Criminal Law > General Principles of Criminal Liability Law > Mens Rea Law
Hernandez‑Gallardo’s attempt to sustain a judgment founded only on the penalty provision is foreclosed by the Almendarez‑Torres precedent, which limits the statute’s use to sentencing enhancements.
Headnote 6
22.17.10 Criminal Law > General Principles of Criminal Liability Law > Mens Rea Law
The appellate court granted the government’s motion for summary affirmance and affirmed the district court’s judgment only because the conviction was improper under the Almendarez‑Torres penalty‑provision rule.
Headnote 7
22.17.10 Criminal Law > General Principles of Criminal Liability Law > Mens Rea Law
The court explicitly states that the decision will not be published and carries no binding precedent, following the circuit’s rule on non‑precedential opinions.

Opinion

PER CURIAM: *

Appealing the Judgment in a Criminal Case, Miguel Hernandez-Gallardo raises arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that 8 U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense. The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

Case brief

Citation data as of July 18, 2026

Summary

Miguel Hernandez‐Gallardo was convicted in district court under 8 U.S.C. § 1326(b)(2) and the government subsequently moved for summary affirmance of that judgment. Hernandez‐Gallardo appealed, contending that the subsection creates a distinct criminal offense and therefore his conviction should be reversed. The Fifth Circuit, exercising its authority under 28 U.S.C. § 1291, considered the appeal as the sole challenge to a final criminal judgment. Relying on the Supreme Court’s decision in Almendarez‐Torres v. United States, the court held that § 1326(b)(2) is a “penalty provision” that merely enhances the punishment for an underlying illegal‐reentry conviction and does not establish a separate crime. Because the statute cannot support an independent conviction, the appellant’s argument was foreclosed by controlling precedent. The court found no genuine dispute of material fact and therefore applied the Fifth Circuit’s Rule 47.5 standard for summary affirmance. Accordingly, it granted the government’s motion and affirmed the district‐court judgment of conviction. The per curiam opinion is unpublished and limited to situations where a defendant is prosecuted solely under § 1326(b)(2) without an underlying re‐entry conviction.

Updated July 18, 2026

Statement of Facts

Miguel Hernandez‐Gallardo was the defendant in a criminal prosecution brought by the United States government. After the district court entered a judgment against Hernandez‐Gallardo, the government filed a motion for summary affirmance of that judgment. Hernandez‐Gallardo appealed, contending that the district court’s ruling was erroneous. In his brief, he advanced arguments that the Fifth Circuit identified as foreclosed by the Supreme Court’s decision in Almendarez‐Torres v. United States, 523 U.S. 224, 235 (1998), which held that 8 U.S.C. § 1326(b)(2) is a penalty provision rather than a separate criminal offense. The government sought, and the Fifth Circuit granted, summary affirmance of the district court’s judgment, thereby affirming the conviction. The appeal therefore arose from the government’s criminal charge under 8 U.S.C. § 1326(b)(2) and the defendant’s attempt to overturn the conviction on grounds that the statute created a distinct offense. The sole issue presented to the Fifth Circuit was whether Hernandez‐Gallardo’s arguments were precluded by Almendarez‐Torres. The government’s relief was a motion for summary affirmance; the appellant’s relief was reversal of the conviction. No additional defenses, counterclaims, or affirmative defenses are identified in the opinion. (The opinion does not provide further factual detail about the underlying conduct, the specific district‐court judgment, or the precise arguments raised by the appellant.)

Updated July 18, 2026

Procedural History

District Court – The United States District Court entered a judgment of conviction against Miguel Hernandez‐Gallardo. The opinion does not state the specific factual findings, the sentence imposed, or any monetary award; it merely notes that a judgment was entered against the defendant.

Government’s Motion for Summary Affirmance – After the judgment, the government filed a motion for summary affirmance of the district‐court judgment. Hernandez‐Gallardo appealed the judgment, seeking reversal of his conviction on the ground that 8 U.S.C. § 1326(b)(2) created a separate criminal offense rather than a penalty provision.

Fifth Circuit of Appeals – The United States Court of Appeals for the Fifth Circuit considered the government’s motion and the appellant’s arguments. Relying on Almendarez‐Torres v. United States, the court held that the appellant’s arguments were foreclosed, granted the government’s motion for summary affirmance, and affirmed the district‐court judgment.

Damages / Relief – The opinion does not mention any monetary damages, restitution, or other specific relief awarded at any stage; the only relief noted is the affirmation of the criminal conviction. Note on Completeness – The opinion provides no detail about the underlying trial (e.g., the nature of the evidence, the sentence imposed), nor does it indicate any intermediate appellate review before the Fifth Circuit. Consequently, the procedural history is limited to the district‐court judgment and the Fifth Circuit’s summary‐affirmance decision.

Updated July 18, 2026

Issues

1. Substantive Issue
Does 8 U.S.C. § 1326(b)(2) operate as a penalty provision rather than a separate criminal offense such that Miguel Hernandez‐Gallardo’s conviction under that provision is legally foreclosed by Almendarez‐Torres v. United States, 523 U.S. 224 (1998)? 2. Procedural Issue
Did the district court err in entering a judgment of conviction by treating 8 U.S.C. § 1326(b)(2) as a distinct criminal offense—contrary to the Supreme Court’s Almendarez‐Torres decision—thereby warranting reversal of the conviction?

Updated July 18, 2026

Judgment

The Fifth Circuit granted the government’s motion for summary affirmance and affirmed the district court’s judgment of conviction against Miguel Hernandez‐Gallardo.

Updated July 18, 2026

Holding

Substantive Rule – 8 U.S.C. § 1326(b)(2) functions only as a penalty provision that augments the punishment for an underlying illegal‐reentry offense; it does not create a separate, standalone criminal offense. Consequently, a conviction predicated solely on § 1326(b)(2) is foreclosed when the Supreme Court’s decision in Almendarez‐Torres v. United States is applicable.

Procedural Rule – A district court that treats 8 U.S.C. § 1326(b)(2) as a distinct criminal offense and enters a judgment of conviction on that basis errs; such a judgment must be reversed (or, in the context of a government‐filed motion, affirmed only on summary‐affirmance grounds) because the conviction is barred by the Almendarez‐Torres precedent.

Updated July 18, 2026

Rule of Law

Penalty‐Provision Rule – Under Almendarez‐Torres v. United States, 523 U.S. 224, 235 (1998), 8 U.S.C. § 1326(b)(2) is a “penalty provision” rather than a separate criminal offense. The Supreme Court held that the statute merely imposes an additional penalty on a defendant who has already been convicted of an illegal‐reentry offense, and therefore does not create a distinct statutory crime.

Foreclosure of Separate Conviction – Because § 1326(b)(2) is a penalty provision, a conviction that is predicated solely on that subsection is foreclosed; the statute may be used only to enhance the punishment for an underlying illegal‐reentry conviction, not to support an independent criminal judgment. Almendarez‐Torres, 523 U.S. at 235.

Updated July 18, 2026

Reasoning

The Fifth Circuit first confirmed that it had authority to consider the government’s motion for summary affirmance under 28 U.S.C. § 1291, because the appeal challenged a final criminal judgment entered by the district court and no intervening appeal had been taken.

The court identified the controlling rule of law as the Supreme Court’s decision in Almendarez‐Torres v. United States, 523 U.S. 224, 235 (1998), which held that 8 U.S.C. § 1326(b)(2) is a “penalty provision” that merely augments the punishment for an underlying illegal‐reentry conviction and does not create a separate statutory offense.

Applying Almendarez‐Torres, the Fifth Circuit examined Hernandez‐Gallardo’s sole argument—that § 1326(b)(2) could support an independent conviction—and concluded that the argument is foreclosed because the statute’s language and legislative history, as interpreted by the Supreme Court, do not indicate the creation of a new crime.

The court noted that, under the Almendarez‐Torres framework, a conviction predicated solely on § 1326(b)(2) is legally impossible; the provision can only be used to enhance a sentence after a conviction under the substantive re‐entry offense, rendering the appellant’s challenge untenable.

Because the appellant raised no other viable issues and the sole issue is barred by controlling precedent, the Fifth Circuit determined that no genuine dispute of material fact exists, satisfying the standard for summary affirmance under Rule 47.5 of the Fifth Circuit.

Accordingly, the court granted the government’s motion for summary affirmance and affirmed the district court’s judgment, noting that the opinion is unpublished and not precedent except as limited by Rule 47.5.

Updated July 18, 2026

Concurring/Dissenting Opinions

Separate Opinions: None. The Fifth Circuit issued a per curiam opinion and did not file any concurring or dissenting opinions.

Updated July 18, 2026

Case Relevance

United States v. Hernandez‐Gallardo is significant because it affirms, for the Fifth Circuit, the Supreme Court’s Almendarez‐Torres rule that 8 U.S.C. § 1326(b)(2) is a “penalty provision” and therefore cannot serve as the basis of an independent criminal conviction; the holding directly resolves the substantive issue of whether the subsection creates a separate offense and the procedural issue of whether a district court may enter a judgment of conviction on that ground, concluding that both are foreclosed and any such judgment must be reversed (or, in a government‐filed summary‐affirmance, affirmed only because the conviction is legally impossible). The rule’s scope is limited to cases in which a defendant is prosecuted solely under § 1326(b)(2) without an underlying illegal‐reentry conviction, and it applies wherever the Fifth Circuit has jurisdiction and the procedural posture is a direct appeal of a final judgment—its reach does not extend to situations where the provision is properly used to enhance a sentence after a valid re‐entry conviction. Consequently, the opinion is a useful authority for defendants and prosecutors alike when arguing that a § 1326(b)(2) conviction is barred, for courts assessing the propriety of sentencing enhancements, and for appellate courts confronting similar procedural challenges; however, it does not address how the penalty provision should be calculated, how it interacts with other immigration‐related offenses, or any substantive questions beyond the binary “penalty‐provision versus separate crime” analysis.

Updated July 18, 2026

Relevant Quotes

Quoted text: “Almendarez‐Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that 8 U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense.”
Bluebook pinpoint citation: United States v. Hernandez‐Gallardo, No. ____, unpublished opinion (5th Cir. ____) (quoting Almendarez‐Torres, 523 U.S. at 235) – pinpoint page numbers not available in the opinion text.
Explanation: This sentence articulates the controlling rule that § 1326(b)(2) is a penalty provision, directly supporting the substantive issue that the statute cannot serve as the basis for an independent conviction.

Quoted text: “The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED.”
Bluebook pinpoint citation: United States v. Hernandez‐Gallardo, No. ____, unpublished opinion (5th Cir. ____) – pinpoint page numbers not available in the opinion text.
Explanation: The court’s grant of summary affirmance confirms that the district court’s judgment—entered on the basis of a § 1326(b)(2) conviction—cannot stand, reinforcing the procedural rule that such a judgment must be reversed (or, in a government‐filed summary affirmance, affirmed only because the conviction is legally foreclosed).

Quoted text: “Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.”
Bluebook pinpoint citation: United States v. Hernandez‐Gallardo, No. ____, unpublished opinion (5th Cir. ____) – pinpoint page numbers not available in the opinion text.
Explanation: This passage delineates the opinion’s limited precedential effect, indicating that while the rule is binding on the parties, it is not binding precedent beyond the narrow circumstances allowed by Rule 47.5, thereby clarifying the scope and limits of the decision’s authority.

Updated July 18, 2026

Synthesis

Not available

All jurisdictions

Not available.

Additional Comments

United States v. Hernandez‑Gallardo · unpublished opinion (5th Cir.)

Monetary awards

No monetary awards found.

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Metadata

Court

Court of Appeals for the Fifth Circuit

Decided

May 2, 2007

Docket

06-50987

Precedential status

Unpublished

United States v. Hernandez-Gallardo

Citing opinions

Headnotes

Opinion