Case: 21-50745 Document: 00516208063 Page: 1 Date Filed: 02/18/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 21-50745 February 18, 2022 consolidated with Lyle W. Cayce No. 21-50746 Clerk Summary Calendar

United States of America, Plaintiff—Appellee, versus Luis Alvarado-Perez, Defendant—Appellant.

Appeals from the United States District Court for the Western District of Texas No. 4:21-CR-123-1 No. 4:21-CR-153-1

Before Smith, Stewart, and Graves, Circuit Judges.

Per Curiam:* Luis Alvarado-Perez appeals his conviction and sentence for illegal reentry after removal under 8 U.S.C. § 1326(a) and (b)(1), along with the

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin- ion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-50745 Document: 00516208063 Page: 2 Date Filed: 02/18/2022

No. 21-50745 c/w No. 21-50746 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 revo- cation or the revocation sentence, he has abandoned any challenge to that judgment. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

Alvarado-Perez contends that treating a prior conviction that in- creases the statutory maximum under § 1326(b) as a sentencing factor, rather than as an element of the offense, violates the Constitution. He correctly concedes that that argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but states that he wishes to preserve it for further review. The government has filed an unopposed motion for summary affirm- ance or, in the alternative, for an extension of time to file its brief.

As the government asserts and Alvarado-Perez concedes, the sole issue on appeal is foreclosed by Almendarez-Torres. See United States v. Per- vis, 937 F.3d 546, 553–54 (5th Cir. 2019). 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 are AFFIRMED. The government’s alternative motion for an extension of time is DENIED as unnecessary.