UNITED STATES v. URBINA LOPEZ (2020)

Jesus Urbina-Lopez appeals the 16-month within-guidelines sentence imposed for illegal reentry after removal from the United States in violation of 8 U.S.C. § 1326. He also appeals the concomitant revocation of his supervised release related to his prior conviction of illegal reentry.

Raising one issue on appeal, Urbina-Lopez urges that his new illegal-reentry sentence, imposed under § 1326(b)(1), violates his due process rights by exceeding the two-year statutory maximum in § 1326(a) because the indictment did not allege the prior conviction necessary for the § 1326(b)(1) enhancement. He concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226 27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but seeks to preserve the issue for further review. The government has filed an unopposed motion for summary affirmance, agreeing that the issue is foreclosed and, in the alternative, a motion for an extension of time to file a brief.

As the government says and Urbina-Lopez concedes, the sole issue is foreclosed by Almendarez-Torres. 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).

Although the appeals of Urbina-Lopez's illegal-reentry conviction and supervised-release revocation were consolidated, he does not address the revocation in his appellate brief. Consequently, he has abandoned any challenge to the revocation or the revocation sentence. See United States v. Beaumont, 972 F.2d 553, 563 (5th Cir. 1992).

Accordingly, the government's 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.

FOOTNOTES

FOOTNOTE.  

PER CURIAM:* FN* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.