United States v. Cadenas

Case: 23-50094 Document: 00516813730 Page: 1 Date Filed: 07/07/2023

United States Court of Appeals for the Fifth Circuit _____________

United States Court of Appeals Fifth Circuit No. 23-50094 consolidated with FILED No. 23-50097 July 7, 2023 Summary Calendar Lyle W. Cayce _____________ Clerk United States of America,

Plaintiff—Appellee, versus

Mario Rolando Cadenas,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC Nos. 4:22-CR-681-1,

4:19-CR-657-1 ______________________________

Before Jones, Southwick, and Ho, Circuit Judges.

Per Curiam: *

Mario Rolando Cadenas appeals his conviction and sentence for illegal reentry after removal, as well as the order revoking the term of supervised Case: 23-50094 Document: 00516813730 Page: 2 Date Filed: 07/07/2023 No. 23-50094 c/w No. 23-50097 release he was serving at the time of the offense. Regarding the illegal reentry offense, he argues that 8 U.S.C. § 1326(b) is unconstitutional because it allows 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. Because Cadenas does not address the revocation or the revocation sentence, he has abandoned any challenge to them. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

Cadenas has filed an unopposed motion for summary disposition and a letter brief correctly conceding that the only issue he raises 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). He explains that he has raised the issue to preserve it for possible further review. Accordingly, because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Cadenas’s motion is GRANTED, and the district court’s judgments are AFFIRMED.