United States v. Calvo-Perez

Case: 22-50495 Document: 00516636929 Page: 1 Date Filed: 02/07/2023

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

No. 22-50495 FILED consolidated with February 7, 2023 No. 22-50496 Lyle W. Cayce Summary Calendar Clerk _____________

United States of America,

Plaintiff—Appellee, versus

Bequer Calvo-Perez,

Defendant—Appellant. ______________________________

Appeals from the United States District Court for the Western District of Texas USDC Nos. 4:22-CR-30-1, 4:21-CR-801-1 ______________________________

Before Stewart, Dennis, and Willett, Circuit Judges.

Per Curiam: *

Bequer Calvo-Perez appeals his conviction and sentence for illegal reentry after removal in violation of 8 U.S.C. § 1326(a) and (b)(1), along with the revocation of a term of supervised release he was serving for a prior Case: 22-50495 Document: 00516636929 Page: 2 Date Filed: 02/07/2023

No. 22-50495 c/w No. 22-50496 offense. He has not briefed the validity of the revocation of his supervised release or his revocation sentence and has, therefore, abandoned any challenge to them. See United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010).

In his sole issue on appeal, Calvo-Perez contends that § 1326(b) is unconstitutional because it permits a sentence above the otherwise- applicable statutory maximum based on facts that were 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 has raised this issue only to preserve it for further review and conceding that this issue 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), Calvo-Perez’s motion is GRANTED, and the district court’s judgment is AFFIRMED.