United States v. Flores-Salcido

Case: 22-50902 Document: 00516738924 Page: 1 Date Filed: 05/04/2023

United States Court of Appeals for the Fifth Circuit ____________

United States Court of Appeals Fifth Circuit No. 22-50902

Summary Calendar FILED ____________ May 4, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus

Everardo Joe Flores-Salcido,

Defendant—Appellant, consolidated with _____________

No. 22-50903 _____________

United States of America,

Plaintiff—Appellee, versus

Everado Flores-Salcido,

Defendant—Appellant. ______________________________

Appeals from the United States District Court for the Western District of Texas Case: 22-50902 Document: 00516738924 Page: 2 Date Filed: 05/04/2023

USDC Nos. 4:19-CR-186-1,

4:22-CR-343-1 ______________________________

Before Higginbotham, Graves, and Ho, Circuit Judges.

Per Curiam: *

Everado Joe Flores-Salcido’s appeal of the six-month sentence of imprisonment imposed following his guilty plea conviction for illegal reentry after deportation from the United States has been consolidated with his appeal of the judgment revoking the term of supervised release he was serving at the time of the offense. Because his appellate brief does not address the revocation or the revocation sentence, he abandons any challenge to that judgment. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Flores-Salcido challenges the district court’s application of the enhanced penalty range in § 1326(b) as unconstitutional because it permits a defendant to be sentenced above the statutory maximum of § 1326(a) based on the fact of a prior conviction that was not alleged in the indictment or found by a jury beyond a reasonable doubt. He raises the issue to preserve it for further review and has filed an unopposed motion for summary disposition, correctly conceding 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), Flores-Salcido’s motion is GRANTED, and the district court’s judgment is AFFIRMED.