United States v. Trujillo-Acuna

Case: 21-50667 Document: 00516203611 Page: 1 Date Filed: 02/15/2022

United States Court of Appeals for the Fifth Circuit

United States Court of Appeals

Fifth Circuit FILED

February 15, 2022

No. 21-50667 Lyle W. Cayce Summary Calendar Clerk

United States of America,

Plaintiff—Appellee, versus

Sergio Acuna-Trujillo,

Defendant—Appellant, consolidated with _____________ No. 21-50780 _____________

United States of America,

Plaintiff—Appellee, versus

Sergio Trujillo-Acuna,

Defendant—Appellant. Case: 21-50667 Document: 00516203611 Page: 2 Date Filed: 02/15/2022

No. 21-50667 c/w No. 21-50780

Appeals from the United States District Court for the Western District of Texas USDC No. 4:16-CR-203-5 USDC No. 4:21-CR-71-1

Before King, Costa, and Ho, Circuit Judges.

Per Curiam:*

In this consolidated appeal, Sergio Acuna-Trujillo 1 challenges the sentence imposed following his guilty plea conviction for illegal reentry into the United States after removal, see 8 U.S.C. § 1326(a), (b)(2), and a separate judgment revoking the supervised release term imposed in an earlier case, see 18 U.S.C. § 3583(e). Because he does not address, in his appellate brief, the validity of the revocation or the revocation sentence, Acuna-Trujillo has abandoned any challenge to the revocation judgment. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

Acuna-Trujillo argues for the first time on appeal that the enhancement of his illegal reentry sentence pursuant to § 1326(b)(2) was unconstitutional because the fact of his prior conviction was not charged in his indictment or proved to a jury beyond a reasonable doubt. He concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he wishes to preserve the issue for further review. The Case: 21-50667 Document: 00516203611 Page: 3 Date Filed: 02/15/2022

No. 21-50667 c/w No. 21-50780

Government has filed an unopposed motion for summary affirmance or, in the alternative, a motion for an extension of time to file a brief.

We conclude that Acuna-Trujillo’s concession of foreclosure is correct, and summary affirmance is appropriate. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019); Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

The Government’s motion for summary affirmance is GRANTED, the Government’s alternative motion for an extension of time to file a brief is DENIED AS MOOT, and the judgments of the district court are AFFIRMED.