United States v. Campuzano-Henao

Case: 22-51064 Document: 00516765867 Page: 1 Date Filed: 05/26/2023

United States Court of Appeals for the Fifth Circuit

____________

United States Court of Appeals

Fifth Circuit No. 22-51064 Summary Calendar FILED ____________ May 26, 2023

Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee, versus

Luis Ferney Campuzano-Henao,

Defendant—Appellant, consolidated with _____________ No. 22-51066 _____________

United States of America,

Plaintiff—Appellee, versus

Luis Ferney Campuzano Henao,

Defendant—Appellant. Case: 22-51064 Document: 00516765867 Page: 2 Date Filed: 05/26/2023

No. 22-51064 c/w No. 22-51066

Appeals from the United States District Court for the Western District of Texas

USDC Nos. 4:22-CR-609-1, 4:22-CR-616-1 ______________________________

Before King, Higginson, and Willett, Circuit Judges.

Per Curiam: *

Luis Ferney Campuzano-Henao appeals his conviction and sentence for illegal reentry after removal from the United States, in violation of 8 U.S.C. § 1326(a) & (b). He also appeals the revocation of his supervised release and the sentence imposed upon revocation; however, because he does not address either the validity of the revocation or the revocation sentence, he has abandoned any challenge to those issues on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

With respect to his illegal reentry conviction and sentence, Campuzano-Henao argues that the application of § 1326(b)’s enhanced penalty provision is 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 has filed an unopposed motion for summary disposition and a letter brief 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), and explaining that he raises the issue to preserve it for Supreme Court review.

Case: 22-51064 Document: 00516765867 Page: 3 Date Filed: 05/26/2023

22-51064 c/w No. 22-51066

Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the motion is GRANTED, and the district court’s judgments are AFFIRMED.