United States v. Victorino-Tista

Case: 21-50653 Document: 00516156774 Page: 1 Date Filed: 01/06/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals

Fifth Circuit FILED

January 6, 2022

No. 21-50653 Summary Calendar Lyle W. Cayce

Clerk United States of America,

Plaintiff—Appellee, versus

Lucas Victorino-Tista,

Defendant—Appellant, consolidated with _____________ No. 21-50671 _____________

United States of America,

Plaintiff—Appellee, versus

Lucas Vidorino Tista-Sis,

Defendant—Appellant. Case: 21-50653 Document: 00516156774 Page: 2 Date Filed: 01/06/2022

No. 21-50653 c/w No. 21-50671

Appeals from the United States District Court for the Western District of Texas

USDC No. 4:20-CR-199-1

USDC No. 4:21-CR-61-1

Before Higginbotham, Higginson, and Duncan, Circuit Judges.

Per Curiam:*

Lucas Victorino-Tista appeals his conviction and sentence for entry after deportation under 8 U.S.C. § 1326(a) and (b)(1), along with the revocation of the term of supervised release he was serving at the time of the offense. Because his appellate brief does not address the validity of the revocation or the revocation sentence, he abandons any challenge to that judgment. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

For the first time on appeal, Victorino-Tista contends that it violates the Constitution to treat a prior conviction that increases the statutory maximum under § 1326(b) as a sentencing factor, rather than as an element of the offense. He correctly concedes that the argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he wishes to preserve it for further review. The Government has moved without opposition for summary affirmance or, alternatively, for an extension of time to file its brief.

As the Government asserts and as Victorino-Tista concedes, the sole issue raised on appeal is foreclosed by Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda- Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007). Because the Government’s position “is clearly right as a matter of law so that there can be no substantial

Case: 21-50653 Document: 00516156774 Page: 3 Date Filed: 01/06/2022

No. 21-50653 c/w No. 21-50671 question as to the outcome of the case,” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), summary affirmance is proper.

Accordingly, the motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. The Government’s alternative motion for an extension of time is DENIED.