United States v. Rios-Hernandez

Case: 22-51067 Document: 00516764074 Page: 1 Date Filed: 05/25/2023

United States Court of Appeals for the Fifth Circuit

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United States Court of Appeals

Fifth Circuit

No. 22-51067 consolidated with FILED

No. 22-51074 May 25, 2023 _____________ Lyle W. Cayce

Clerk United States of America,

Plaintiff—Appellee, versus

Raul Omar Rios-Hernandez,

Defendant—Appellant. ______________________________

Appeals from the United States District Court for the Western District of Texas USDC Nos. 4:22-CR-666-1, 4:22-CR-608-1

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Before King, Higginson, and Willett, Circuit Judges.

Per Curiam: *

Raul Omar Rios-Hernandez appeals his conviction and sentence for illegal reentry into the United States under 8 U.S.C. § 1326(a) and (b)(1). 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 address the revocation or revocation sentence, he has abandoned any

Case: 22-51067 Document: 00516764074 Page: 2 Date Filed: 05/25/2023

22-51067 c/w No. 22-51074 challenge to that order. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

For the first time on appeal, Rios-Hernandez argues that his sentence exceeds the statutory maximum and is therefore unconstitutional because the district court enhanced his sentence under § 1326(b) 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 the 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 his argument is foreclosed, summary disposition is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, Rios-Hernandez’s motion for summary disposition is GRANTED, and the district court’s judgments are AFFIRMED.