United States v. Morales-Agustin

Case: 21-50624 Document: 00516231752 Page: 1 Date Filed: 03/09/2022

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

Fifth Circuit FILED

March 9, 2022

No. 21-50624 Summary Calendar Lyle W. Cayce

Clerk United States of America,

Plaintiff—Appellee, versus

Jesus Morales-Agustin,

Defendant—Appellant, consolidated with _____________ No. 21-50625 _____________

United States of America,

Plaintiff—Appellee, versus

Jesus Francisco Augustine-Morales,

Defendant—Appellant. Case: 21-50624 Document: 00516231752 Page: 2 Date Filed: 03/09/2022

No. 21-50624

Appeals from the United States District Court for the Western District of Texas USDC No. 2:20-CR-1135 USDC No. 2:20-CR-1186

Before Jolly, Willett, and Engelhardt, Circuit Judges.

Per Curiam:*

In this consolidated appeal, Jesus Francisco Augustin-Morales 1 challenges the sentence imposed following his guilty plea conviction for illegal reentry into the United States after removal, see 8 U.S.C. § 1326(a), (b)(2), and a separate judgment revoking the supervised release term imposed in an earlier case, see 18 U.S.C. § 3583(e). Because he does not address, in his motion for summary affirmance or letter brief, the validity of the revocation or the revocation sentence, Augustin-Morales has abandoned any challenge to the revocation judgment. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

As noted, Augustin-Morales moves for summary affirmance, to which the Government is unopposed. Augustin-Morales argues for the first time on appeal that the enhancement of his illegal reentry sentence pursuant to § 1326(b)(2) was unconstitutional because the fact of his prior conviction was not charged in his indictment or proved to a jury beyond a reasonable doubt. However, he concedes that this argument is foreclosed by Almendarez-Torres

Case: 21-50624 Document: 00516231752 Page: 3 Date Filed: 03/09/2022

No. 21-50624

v. United States, 523 U.S. 224 (1998), and raises the issue to preserve it for further review.

We conclude that Augustin-Morales’s concession of foreclosure is correct and summary affirmance is appropriate. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019); Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

The motion for summary affirmance is GRANTED, and the judgments of the district court are AFFIRMED.