United States v. Carchi-Fernandez

Case: 21-51004 Document: 00516275120 Page: 1 Date Filed: 04/11/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit _____________

FILED No. 21-51004 April 11, 2022 consolidated with Lyle W. Cayce No. 21-51021 Clerk Summary Calendar _____________

United States of America,

Plaintiff—Appellee, versus

Luis Adrian Carchi-Fernandez,

Defendant—Appellant.

Appeals from the United States District Court for the Western District of Texas USDC No. 4:21-CR-477-1

USDC No. 4:21-CR-643-1

Before Higginbotham, Higginson, and Duncan, Circuit Judges.

Per Curiam:*

In these consolidated appeals, Luis Adrian Carchi-Fernandez appeals from the sentence imposed following his guilty plea conviction for illegal Case: 21-51004 Document: 00516275120 Page: 2 Date Filed: 04/11/2022

No. 21-51004 c/w No. 21-51021 reentry after having previously been removed, pursuant to 8 U.S.C. § 1326(a) and (b)(1). Carchi-Fernandez 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. He 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 and has filed an unopposed motion for summary disposition. Carchi-Fernandez also appeals from the revocation of a previously imposed term of supervised release, but he does not address the validity of the revocation or the revocation sentence in his brief on appeal, so he has abandoned any challenge to them. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). As Carchi-Fernandez concedes, the issue he raises 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 this 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, Carchi-Fernandez’s motion for summary disposition is GRANTED, and the judgments of the district court are AFFIRMED.