UNITED STATES v. DOMINGO MORALES (2021)

Appealing the judgments in two criminal cases, Antonio Domingo-Morales challenges his within-guidelines sentence of 21 months of imprisonment and three years of supervised release for illegal reentry. As the sole issue on appeal, he asserts that the enhancement of his sentence pursuant to 8 U.S.C. § 1326(b)(1) is unconstitutional because the enhancement is based on facts neither alleged in his indictment nor proven to a jury beyond a reasonable doubt. The Government has filed an unopposed motion for summary affirmance arguing that the issue is foreclosed and, in the alternative, a motion for an extension of time to file a brief.

As the Government argues, and Domingo-Morales concedes, this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 239-47, 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. Rojas-Luna, 522 F.3d 502, 505-06 (5th Cir. 2008). Thus, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Although the appeals of Domingo-Morales'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 revocation sentence. 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 judgments of the district court are AFFIRMED.

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Per Curiam:* FN* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.