United States v. Pena-Garcia

Case: 21-50730 Document: 00516260596 Page: 1 Date Filed: 03/30/2022

United States Court of Appeals for the Fifth Circuit

United States Court of Appeals No. 21-50730 Fifth Circuit consolidated with FILED No. 21-50747 March 30, 2022 Summary Calendar Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee, versus

Eduardo Pena-Garcia,

Defendant—Appellant.

Appeals from the United States District Court for the Western District of Texas USDC Nos. 4:21-CR-523-1, 4:21-CR-125-1

Before Higginbotham, Duncan, and Engelhardt, Circuit Judges.

Per Curiam:*

Eduardo Pena-Garcia appeals the 63-month sentence imposed after his guilty plea conviction for illegal reentry after having previously been deported, pursuant to 8 U.S.C. § 1326(a) and (b)(1), along with the Case: 21-50730 Document: 00516260596 Page: 2 Date Filed: 03/30/2022

No. 21-50730 c/w No. 21-50747 revocation of the term of supervised release he was serving at the time of the instant offense. Because his appellate brief does not address the validity of the revocation or the revocation sentence, he abandons any challenge to that order. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

Pena-Garcia contends, for the first time on appeal, 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. Pena-Garcia concedes that this issue is foreclosed by Almendarez- Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve the issue for future review. In addition, he has filed an unopposed motion for summary disposition.

As Pena-Garcia 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 his 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 disposition is proper. Accordingly, Pena-Garcia’s motion for summary disposition is GRANTED, and the judgment of the district court and order revoking supervised release are AFFIRMED.