United States v. Diaz-Diaz

Case: 21-50994 Document: 00516239452 Page: 1 Date Filed: 03/15/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED March 15, 2022 No. 21-50994

Lyle W. Cayce consolidated with

Clerk No. 21-51007

Summary Calendar

United States of America,

Plaintiff—Appellee, versus

Noe Diaz-Diaz,

Defendant—Appellant.

Appeals from the United States District Court for the Western District of Texas USDC No. 4:21-CR-447-1

USDC No. 4:21-CR-524-1

Before Jolly, Willett, and Engelhardt, Circuit Judges.

Per Curiam:*

Noe Diaz-Diaz appeals his conviction and sentence for illegal reentry after deportation, along with the revocation of the term of supervised release Case: 21-50994 Document: 00516239452 Page: 2 Date Filed: 03/15/2022

No. 21-50994 c/w No. 21-51007 he was serving at the time of the offense. He has not briefed the validity of the revocation of his supervised release or the 12-month revocation sentence he received and has, therefore, abandoned any challenge to them. See United States v. Still, 102 F.3d 118, 122 n.7 (5th Cir. 1996).

Diaz-Diaz argues that his sentence of 30 months of imprisonment and three years of supervised release exceeded the statutory maximum because the enhanced penalty provisions of 8 U.S.C. § 1326(b) are unconstitutional. He has filed an unopposed motion for summary disposition and a letter brief conceding correctly that this 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). Diaz-Diaz states that he has raised the issue only to preserve it for possible further review. Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Diaz-Diaz’s motion is GRANTED, and the district court’s judgments are AFFIRMED.