UNITED STATES v. GANDARA ESCARCEGA (2021)

United States Court of Appeals, Fifth Circuit.

UNITED STATES of America, Plaintiff—Appellee, v. Mayra Vanessa GANDARA ESCARCEGA, Defendant—Appellant,

United States of America, Plaintiff—Appellee, v. Mayra Vanessa Gandara-Escarcega, Defendant—Appellant.

No. 20-50722

Decided: February 25, 2021

Before Davis, Stewart, and Dennis, Circuit Judges. Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff - Appellee Kristin Michelle Kimmelman, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office, Western District of Texas, San Antonio, TX, Jack Meredith, Federal Public Defender's Office, Western District of Texas, Alpine, TX, for Defendant - Appellant

Mayra Vanessa Gandara Escarcega appeals the within-guidelines sentence of 30 months of imprisonment and three years of supervised release imposed following her guilty plea conviction for illegal reentry after removal from the United States, in violation of 8 U.S.C. § 1326. She also appeals the concomitant revocations of her supervised release terms related to her prior convictions for attempted money laundering and conspiracy to possess with intent to distribute 1,000 kilograms or more of marijuana and five kilograms or more of cocaine.

Raising one issue on appeal, Gandara Escarcega argues that she is entitled to resentencing for her new illegal reentry conviction because the sentencing enhancement provisions set forth under § 1326(b) are unconstitutional. She concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 229-35, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and she seeks to preserve the issue for further review. The Government 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 argues, and Gandara Escarcega agrees, the sole issue raised on appeal 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 Gandara Escarcega's illegal reentry conviction and supervised release revocations were consolidated, she does not address the revocations in her appellate brief. Consequently, she has abandoned any challenge she could have raised to the revocations or revocation sentences. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

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