United States v. Lujan-Madrid

Case: 21-51133 Document: 00516331187 Page: 1 Date Filed: 05/24/2022

United States Court of Appeals for the Fifth Circuit

United States Court of Appeals Fifth Circuit FILED May 24, 2022 No. 21-51133 Lyle W. Cayce Summary Calendar Clerk

United States of America,

Plaintiff—Appellee, versus

Ereby Lujan-Madrid,

Defendant—Appellant, consolidated with _____________

No. 21-51134 ____________

United States of America,

Plaintiff—Appellee, versus

Erbey Lujan-Madrid,

Defendant—Appellant.

Case: 21-51133 Document: 00516331187 Page: 2 Date Filed: 05/24/2022 No. 21-51133 c/w No. 21-51134

Appeals from the United States District Court for the Western District of Texas USDC No. 4:21-CR-544-1

USDC No. 4:13-CR-379-3

Before Smith, Stewart, and Graves, Circuit Judges.

Per Curiam:*

Ereby Lujan-Madrid appeals his conviction and sentence for illegal reentry in violation of 8 U.S.C. § 1326(a) and (b), along with the revocation of a term of supervised release he was serving at the time of the offense. He has not briefed, and has therefore abandoned, any challenge to the revocation of supervised release or his revocation sentence. See United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010).

For the first time on appeal, Lujan-Madrid contends that § 1326(b) is unconstitutional because it allows for a sentence above the otherwise applicable statutory maximum based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. He has filed an unopposed motion for summary disposition and a letter brief explaining that he raises this issue only to preserve it for further review and conceding correctly that it 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). Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the motion is GRANTED, and the district court’s judgments are AFFIRMED.