United States v. Gallegos-Quirino

Case: 21-51090 Document: 00516260185 Page: 1 Date Filed: 03/30/2022

United States Court of Appeals for the Fifth Circuit

United States Court of Appeals No. 21-51090 Fifth Circuit consolidated with FILED

No. 21-51093 March 30, 2022 Summary Calendar Lyle W. Cayce

Clerk United States of America,

Plaintiff—Appellee, versus

Daniel Gallegos-Quirino,

Defendant—Appellant.

Appeals from the United States District Court for the Western District of Texas USDC No. 4:21-CR-837-1 USDC No. 4:21-CR-540-1

Before Wiener, Dennis, and Haynes, Circuit Judges.

Per Curiam:*

Daniel Gallegos-Quirino appeals his conviction for illegal reentry after removal under 8 U.S.C. § 1326(a) and (b)(2), along with the revocation of the

Case: 21-51090 Document: 00516260185 Page: 2 Date Filed: 03/30/2022

No. 21-51090 c/w No. 21-51093 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, Gallegos-Quirino 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. The Government has moved without opposition for summary affirmance or, alternatively, for an extension of time to file its brief.

As the Government asserts and as Gallegos-Quirino 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). Because the Government’s position “is clearly right as a matter of law so that 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. The Government’s alternative motion for an extension of time is DENIED as MOOT.