UNITED STATES v. PINEDA PINEDA (2018)

Edgar Alonso Pineda-Pineda appeals the 48-month sentence imposed on his jury trial conviction for illegal reentry following removal. See 8 U.S.C. § 1326. Additionally, he appeals the related revocation of his term of supervised release on an earlier conviction for illegal reentry and his 18-month revocation sentence. See 18 U.S.C. § 3583.

Pineda-Pineda argues that because his indictment did not specify the prior aggravated felony conviction that formed the basis of his sentencing enhancement, his sentence, imposed under 8 U.S.C. § 1326(b)(2), exceeded the two-year maximum sentence under § 1326(a) and therefore violated his due process rights. The Government has filed an unopposed motion for summary affirmance and, alternatively, seeks an extension of time to file its brief.

As the Government correctly argues and Pineda-Pineda correctly concedes, the sole issue raised 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).

Pineda-Pineda’s appeal from the revocation of supervised release was consolidated with the instant appeal. But because he has raised no argument with respect to his revocation case, he has abandoned his appeal of the judgment of revocation and of the revocation sentence. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

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

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PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.