Case: 22-50963 Document: 00516698450 Page: 1 Date Filed: 04/03/2023

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

No. 22-50963 FILED April 3, 2023 consolidated with No. 22-50975 Lyle W. Cayce _____________ Clerk United States of America, Plaintiff—Appellee, versus Victor Ruelas-Cienega, Defendant—Appellant. ______________________________ Appeals from the United States District Court for the Western District of Texas USDC Nos. 4:19-CR-430-1, 4:22-CR-498-1 ______________________________ Before Jolly, Oldham, and Wilson, Circuit Judges.

Per Curiam: * Victor Ruelas-Cienega appeals his conviction and sentence under 8 U.S.C. § 1326 for illegal entry into the United States after deportation. 1 He _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Ruelas-Cienega also appeals the revocation of his supervised release and the 10- month sentence imposed on revocation, but he has abandoned by failing to brief any argument challenging the revocation or revocation sentence. See United States v. Still, 102 F.3d 118, 122 n.7 (5th Cir. 1996).

Case: 22-50963 Document: 00516698450 Page: 2 Date Filed: 04/03/2023

22-50963 c/w No. 22-50975 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. Ruelas- Cienega has filed an unopposed motion for summary disposition acknowledging that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve it for possible Supreme Court review.

This court has held that subsequent Supreme Court decisions such as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), did not overrule Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Thus, Ruelas-Cienega is correct that his argument is foreclosed, and summary disposition is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Ruelas-Cienega’s motion is GRANTED, and the district court’s judgment is AFFIRMED.