Case: 21-50727 Document: 00516208991 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. 21-50727 consolidated with Lyle W. Cayce No. 21-50739 Clerk Summary Calendar

United States of America, Plaintiff—Appellee, versus Martin Andres-Tomas, Defendant—Appellant.

Appeals from the United States District Court for the Western District of Texas USDC No. 4:21-CR-176-1 USDC No. 4:18-CR-155-1

Before Davis, Jones, and Elrod, Circuit Judges.

Per Curiam:* Martin Andres-Tomas appeals his conviction and sentence for entry after deportation 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* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

Case: 21-50727 Document: 00516208991 Page: 2 Date Filed: 02/18/2022

No. 21-50727 c/w No. 21-50739 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, Andres-Tomas contends that treating a prior conviction that increases 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 the 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 moved without opposition for summary affirmance or, alternatively, for an extension of time to file its brief.

As the Government asserts and as Andres-Tomas 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). 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.