United States v. Villalobos-Marquez

Case: 21-51225 Document: 00516262138 Page: 1 Date Filed: 03/31/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED March 31, 2022 No. 21-51225

Lyle W. Cayce consolidated with

Clerk No. 21-51233

Summary Calendar

United States of America,

Plaintiff—Appellee, versus

ERNESTO VILLALOBOS-MARQUEZ,

Defendant—Appellant,

Appeals from the United States District Court for the Western District of Texas USDC No. 4:13-CR-497-4

USDC No. 4:21-CR-707-1

Before Smith, Stewart, and Graves, Circuit Judges.

Per Curiam:*

Ernesto Villalobos-Marquez appeals his conviction and sentence under 8 U.S.C. § 1326(a) and (b)(2), along with the district court’s order Case: 21-51225 Document: 00516262138 Page: 2 Date Filed: 03/31/2022

No. 21-51225 c/w No. 21-51233 revoking the term of supervised release he was serving at the time of the 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).

Villalobos-Marquez contends that it violates the Constitution to treat a prior conviction that increases the statutory maximum under § 1326(b)(2) as a sentencing factor, rather than 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. Villalobos-Marquez has filed an unopposed motion for summary affirmance. Because Villalobos-Marquez’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 conviction and order of revocation are AFFIRMED.