United States v. Galvan-Silva

Case: 21-50769 Document: 00516227993 Page: 1 Date Filed: 03/07/2022

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

No. 21-50769 FILED March 7, 2022 consolidated with

No. 21-50778 Lyle W. Cayce Summary Calendar Clerk _____________

United States of America,

Plaintiff—Appellee, versus

Francisco Javier Galvan-Silva,

Defendant—Appellant.

Appeals from the United States District Court for the Western District of Texas USDC No. 4:19-CR-779-2

USDC No. 4:21-CR-248-1

Before Higginbotham, Higginson, and Duncan, Circuit Judges.

Per Curiam:*

Case: 21-50769 Document: 00516227993 Page: 2 Date Filed: 03/07/2022

No. 21-50769 c/w No. 21-50778

Francisco Javier Galvan-Silva appeals his conviction and sentence for illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2) as well as the revocation of the term of supervised release he was serving at the time of the offense. He has not briefed, and has therefore abandoned, any challenge to the revocation of supervised release or his revocation sentence. See United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010).

For the first time on appeal, Galvan-Silva contends that the enhancement of his sentence pursuant to § 1326(b) was unconstitutional because the fact of a prior conviction was not charged and proved to a jury beyond a reasonable doubt. He has filed an unopposed motion for summary disposition and a letter brief explaining that he raises this issue only to preserve it for further review and conceding correctly that it is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). 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, 406 F.2d 1158, 1162 (5th Cir. 1969), Galvan-Silva’s motion is GRANTED, and the district court’s judgments are AFFIRMED.