United States v. Ramirez-Almader

Case: 21-50729 Document: 00516208697 Page: 1 Date Filed: 02/18/2022

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

Fifth Circuit FILED

February 18, 2022

No. 21-50729

Lyle W. Cayce consolidated with

Clerk

No. 21-50744 Summary Calendar

United States of America,

Plaintiff—Appellee, versus

Aaron Ramirez-Almader,

Defendant—Appellant.

Appeals from the United States District Court for the Western District of Texas USDC No. 4:21-CR-63-1 USDC No. 4:18-CR-679-3

Before Davis, Jones, and Elrod, Circuit Judges.

Per Curiam:*

Aaron Ramirez-Almader appeals his conviction and sentence for illegal reentry after having been previously removed, pursuant to 8 U.S.C.

Case: 21-50729 Document: 00516208697 Page: 2 Date Filed: 02/18/2022

No. 21-50729 c/w No. 21-50744

§ 1326(a) and (b)(2), 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 order. See Yohey v. Collins, 985 F.2d 222, 224- 25 (5th Cir. 1993).

Ramirez-Almader argues 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 Ramirez-Almader concedes, the sole issue raised on appeal is foreclosed by Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019); United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014). 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 judgment of the district court and order revoking supervised released are AFFIRMED. The Government’s alternative motion for an extension of time is DENIED.