UNITED STATES v. ESTRADA EUGENIO (2020)

Alfredo Estrada-Eugenio appeals his within-Guidelines sentence of 52 months of imprisonment and three years of supervised release imposed following his guilty plea conviction for illegal reentry after deportation. Additionally, he appeals the revocation of his supervised release related to a prior conviction for illegal reentry. Estrada-Eugenio argues that the enhancement of his sentence for his new illegal reentry offense pursuant to 8 U.S.C. § 1326(b)(2), which increased the maximum sentence to 20 years of imprisonment and three years of supervised release, is unconstitutional because of the treatment of the provision as a sentencing factor rather than as an element that must be alleged in the indictment and proved to a jury beyond a reasonable doubt. He concedes that his argument that a prior conviction must be alleged in the indictment and proved to a jury is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he seeks to preserve the argument for possible Supreme Court review.

Estrada-Eugenio’s argument is indeed foreclosed. 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). Estrada-Eugenio has not raised any argument with respect to his revocation proceedings. Any such claim is thus deemed abandoned. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).

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

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PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.