Case: 22-50186 Document: 00516604578 Page: 1 Date Filed: 01/10/2023

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit No. 22-50186 Summary Calendar FILED January 10, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Luis Alberto Escobedo-Duenas, Defendant—Appellant, consolidated with _____________ No. 22-50187 ____________ United States of America, Plaintiff—Appellee, versus Luis Alberto Escobedo-Duena, Defendant—Appellant.

Case: 22-50186 Document: 00516604578 Page: 2 Date Filed: 01/10/2023 No. 22-50186 c/w No. 22-50187

Appeals from the United States District Court for the Western District of Texas USDC No. 4:11-CR-296-6 USDC No. 4:21-CR-750-1

Before Jones, Haynes, and Oldham, Circuit Judges.

Per Curiam:* Luis Alberto Escobedo-Duenas appeals his guilty plea conviction and sentence for illegal reentry into the United States under 8 U.S.C. § 1326(a) and (b)(2). He also appeals the district court’s order revoking the term of supervised release he was serving at the time of the offense. Because his appellate brief does not raise a challenge to 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).

On appeal, Escobedo-Duenas argues that the recidivism enhancement in § 1326(b) is unconstitutional because it permits a sentence above the otherwise-applicable statutory maximum established by § 1326(a) based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. While Escobedo-Duenas acknowledges this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), he nevertheless seeks to preserve it for possible Supreme Court review.

Accordingly, he has filed an unopposed motion for summary disposition.

As Escobedo-Duenas concedes, his argument is foreclosed by Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Because summary disposition is appropriate, see Groendyke Transp.,

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

Case: 22-50186 Document: 00516604578 Page: 3 Date Filed: 01/10/2023

No. 22-50186 c/w No. 22-50187 Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the motion is GRANTED, and the judgments of the district court are AFFIRMED.