UNITED STATES v. PEREZ MONTERO (2018)

Alfredo Perez-Montero appeals his guilty-plea conviction of illegal reentry after deportation, in violation of 8 U.S.C. § 1326, and his 63-month sentence. He also appeals the revocation of his supervised release related to a conviction for illegal reentry. These appeals are consolidated.

Perez-Montero contends that because his indictment did not specify the felony conviction that formed the basis of his sentencing enhancement, the sentence exceeded the two-year maximum under § 1326(a) and violated his due process rights. Perez-Montero has not raised any issue with the revocation of supervised release. All issues not raised are deemed abandoned. See Yohey v. Collins, 985 F.2d 222, 224−25 (5th Cir. 1993).

The government filed an unopposed motion for summary affirmance and, alternatively, seeks an extension of time to file its brief. As the government urges and Perez-Montero concedes, the sole issue on appeal is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda-Arrellano, 492 F.3d 624, 625−26 (5th Cir. 2007). Because the issue is foreclosed, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

The motion for summary affirmance is GRANTED, and the judgments are AFFIRMED. The government’s alternative motion for an extension of time to file its brief is DENIED as unnecessary.

FOOTNOTES

FOOTNOTE.  

PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.