United States v. Montoya-Balderrama

Case: 21-50840 Document: 00516213682 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. 21-50840 consolidated with Lyle W. Cayce

Clerk

No. 21-50853 Summary Calendar

United States of America,

Plaintiff—Appellee, versus

Jesus Antonio Montoya-Balderrama,

Defendant—Appellant.

Appeals from the United States District Court for the Western District of Texas USDC No. 4:21-CR-276-1 USDC No. 4:14-CR-643-4

Before Davis, Jones, and Elrod, Circuit Judges.

Per Curiam:*

Jesus Antonio Montoya-Balderrama appeals his conviction for illegal reentry after removal under 8 U.S.C. § 1326(a) and (b)(2), along with the

Case: 21-50840 Document: 00516213682 Page: 2 Date Filed: 02/23/2022

No. 21-50840 c/w No. 21-50853 revocation of the term of supervised release he was serving at the time of the offense. Because his appellate letter 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, Montoya-Balderrama contends 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. Accordingly, Montoya-Balderrama has moved without opposition for summary affirmance.

As Montoya-Balderrama 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). Indeed, because “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 is AFFIRMED.