United States v. Rios-Mendez

Case: 22-51088 Document: 00516839708 Page: 1 Date Filed: 07/31/2023

United States Court of Appeals for the Fifth Circuit

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United States Court of Appeals

Fifth Circuit No. 22-51088 consolidated with FILED

No. 22-51089 July 31, 2023 Summary Calendar Lyle W. Cayce _____________ Clerk

United States of America,

Plaintiff—Appellee, versus

Marcos Rios-Mendez,

Defendant—Appellant.

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

USDC Nos. 4:22-CR-435-1, 4:18-CR-531-6 ______________________________

Before Jones, Haynes, and Oldham, Circuit Judges.

Per Curiam: *

Marcos Rios-Mendez appeals his conviction and sentence for illegal entry into the United States after deportation under 8 U.S.C. § 1326(a) and (b)(2). For the first time on appeal, he argues that the recidivism

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This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-51088 Document: 00516839708 Page: 2 Date Filed: 07/31/2023

22-51088 c/w No. 22-51089 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. While Rios-Mendez acknowledges this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), he nevertheless seeks to preserve it for possible Supreme Court review. In addition, Rios-Mendez has filed an unopposed motion for summary disposition.

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, Rios-Mendez 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).

As Rios-Mendez raises no issue with respect to the revocation of his supervised release, he has abandoned any challenge to the revocation or revocation sentence. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

Rios-Mendez’s motion is GRANTED, and the district court’s judgment is AFFIRMED.