Case: 20-50771 Document: 00515769733 Page: 1 Date Filed: 03/08/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit _____________ FILED March 8, 2021 No. 20-50771 Lyle W. Cayce consolidated with Clerk Nos. 20-50778, 20-50788 _____________ United States of America, Plaintiff—Appellee, versus Roque Saenz-Quintela, Defendant—Appellant.

Appeals from the United States District Court for the Western District of Texas No. 4:19-CR-825-1 No. 7:10-CR-353-3 No. 7:09-CR-14-1

Before King, Smith, and Wilson, Circuit Judges.

Per Curiam:* Roque Saenz-Quintela appeals his sentence for illegal reentry in viola- tion of 8 U.S.C. § 1326. He also appeals the concomitant revocations of his

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin- ion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

Case: 20-50771 Document: 00515769733 Page: 2 Date Filed: 03/08/2021

No. 20-50771 No. 20-50778 No. 20-50788

supervised release related to his convictions of possession with intent to dis- tribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841, and conspiracy to distribute and possess with intent to distribute over 5 kilograms of cocaine, in violation of § 841 and 21 U.S.C. § 846.

Raising one issue on appeal, Saenz-Quintela contends that the recidi- vism enhancement under § 1326(b) is unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and subsequent decisions because it allows a sentence above the otherwise applicable statutory maximum based on facts that are neither alleged in the indictment nor found by a jury beyond a reason- able doubt. Saenz-Quintela concedes that that theory is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226−27 (1998); he seeks to preserve the issue for further review.

The government filed an unopposed motion for summary affirmance, agreeing that the issue is foreclosed; in the alternative, the government moved for an extension of time to file its brief. Saenz-Quintela concedes that the sole issue is foreclosed by Almendarez-Torres. See United States v. Wal- lace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda-Arrellano, 492 F.3d 624, 625−26 (5th Cir. 2007). Summary affirmance is therefore appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Although the appeals of Saenz-Quintela’s illegal-reentry conviction and supervised release revocations were consolidated, he does not address the revocations, so he has abandoned any challenge to the revocation or revo- cation sentence. See Yohey v. Collins, 985 F.2d 222, 224−25 (5th Cir. 1993).

Accordingly, the motion for summary affirmance is GRANTED, and the judgments are AFFIRMED. The government’s alternative motion for an extension of time is DENIED.