United States v. Salgado-Castellanos

Case: 21-51015 Document: 00516234183 Page: 1 Date Filed: 03/10/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED March 10, 2022 No. 21-51015

Summary Calendar Lyle W. Cayce Clerk

United States of America,

Plaintiff—Appellee, versus

Erik Daniel Salgado-Castellano,

Defendant—Appellant, consolidated with _____________

No. 21-51028 _____________

United States of America,

Plaintiff—Appellee, versus

Erick Daniel Salgado-Castellanos,

Defendant—Appellant.

Appeals from the United States District Court for the Western District of Texas Case: 21-51015 Document: 00516234183 Page: 2 Date Filed: 03/10/2022 No. 21-51015 c/w No. 21-51028

USDC No. 4:21-CR-481-1

USDC No. 4:21-CR-526-1

Before Smith, Stewart, and Graves, Circuit Judges.

Per Curiam:*

Erik Daniel Salgado-Castellano1 appeals the sentence imposed following his guilty plea conviction for illegal reentry after deportation, as well as the revocation of the term of supervised release he was serving at the time of the offense. He argues that 8 U.S.C. § 1326(b) is unconstitutional because it allows a sentence above the otherwise applicable statutory maximum of two years of imprisonment and one year of supervised release based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. Because Salgado-Castellano does not address the validity of the revocation or the revocation sentence, he has abandoned any challenge to them. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Salgado-Castellano has filed an unopposed motion for summary disposition and a letter brief correctly conceding that the issue 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). He explains that he has raised the issue only to preserve it for possible further review. Accordingly, because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Salgado-Castellano’s motion is GRANTED, and the district court’s judgments are AFFIRMED.