United States v. Rojas-Leal

Case: 21-50836 Document: 00516213246 Page: 1 Date Filed: 02/23/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED February 23, 2022 No. 21-50836

Lyle W. Cayce Summary Calendar

Clerk

United States of America,

Plaintiff—Appellee, versus

Omero Rojas-Leal,

Defendant—Appellant, consolidated with _____________

No. 21-50843 _____________

United States of America,

Plaintiff—Appellee, versus

Belarmino Lorenzo-Lopez,

Defendant—Appellant.

Case: 21-50836 Document: 00516213246 Page: 2 Date Filed: 02/23/2022 No. 21-50836 c/w No. 21-50843

Appeals from the United States District Court for the Western District of Texas USDC No. 4:21-CR-281-1

USDC No. 4:21-CR-520-1

Before Higginbotham, Higginson, and Duncan, Circuit Judges.

Per Curiam:*

Omero Rojas-Leal appeals his conviction and sentence for illegal reentry into the United States after having been ordered removed, in violation of 8 U.S.C. § 1326(a) and (b)(2), along with the revocation of the terms of supervised release he was serving at the time of the offense. He argues that § 1326(b) is unconstitutional because it allows a sentence above the otherwise applicable statutory maximum based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. Because he does not address the validity of the revocation of his terms of supervised release or the sentences imposed upon revocation, he has abandoned any challenge to that judgment. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Rojas-Leal has filed an unopposed motion for summary disposition and a letter brief correctly conceding that the issue is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), and merely seeks to preserve this claim for further review. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, Case: 21-50836 Document: 00516213246 Page: 3 Date Filed: 02/23/2022

No. 21-50836 c/w No. 21-50843 406 F.2d 1158, 1162 (5th Cir. 1969), Rojas-Leal’s motion is GRANTED, and the judgments of the district court are AFFIRMED.