United States v. Agustin-Miguel

Case: 21-50512 Document: 00516160688 Page: 1 Date Filed: 01/10/2022

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

Fifth Circuit FILED

January 10, 2022

No. 21-50512

Lyle W. Cayce consolidated with

Clerk

No. 21-50514

United States of America,

Plaintiff—Appellee, versus

Francisco Agustin-Miguel,

Defendant—Appellant.

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

USDC Nos. 4:20-CR-160-1, 4:21-CR-31-1

Before Jolly, Willett, and Engelhardt, Circuit Judges.

Per Curiam:*

Francisco Agustin-Miguel appeals his conviction and sentence under 8 U.S.C. § 1326(a) and (b)(1), respectively, along with the revocation of a term of supervised release imposed for his previous illegal-reentry offense.

Case: 21-50512 Document: 00516160688 Page: 2 Date Filed: 01/10/2022

No. 21-50512 c/w No. 21-50514

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, Agustin-Miguel 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 Agustin-Miguel 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 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 judgments of the district court are AFFIRMED. The Government’s alternative motion for an extension of time is DENIED.