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United States v. Ramos-Ramos ( 2021 )


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  • Case: 21-50086     Document: 00515934075         Page: 1     Date Filed: 07/12/2021
United States Court of Appeals
for the Fifth Circuit                             United States Court of Appeals
Fifth Circuit
FILED
July 12, 2021
No. 21-50086
Lyle W. Cayce
consolidated with                               Clerk
No. 21-50111
Summary Calendar
United States of America,
Plaintiff—Appellee,
versus
Jose Luis Ramos-Ramos,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-432-1
USDC No. 4:17-CR-354-1
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Jose Luis Ramos-Ramos appeals the within-guidelines sentence of 24
months of imprisonment and three years of supervised release, which the
*
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opinion should not be published and is not precedent except under the limited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.
Case: 21-50086       Document: 00515934075           Page: 2   Date Filed: 07/12/2021
No. 21-50086
c/w No. 21-50111
district court imposed following his guilty plea conviction for illegal reentry
in violation of
    8 U.S.C. § 1326
    . He also appeals the revocation of his
supervised release related to his 2018 drug trafficking conviction and his
consecutive 10-month revocation sentence. Ramos-Ramos contends that the
recidivism enhancement under § 1326(b), which was applied in his case, is
unconstitutional because it increases the statutory maximum sentence based
on facts that are neither alleged in the indictment nor found by a jury beyond
a reasonable doubt. He concedes the issue is foreclosed by Almendarez-Torres
v. United States,
    523 U.S. 224
     (1998), but seeks to preserve the issue for
further review.    The Government has filed an unopposed motion for
summary affirmance, asserting that Ramos-Ramos’s argument is foreclosed.
The parties are correct that Ramos-Ramos’s argument is foreclosed
by Almendarez-Torres. 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).
Further, by failing to address the supervised release revocation in his brief,
Ramos-Ramos 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, see Groendyke Transp., Inc. v. Davis,
    406 F.2d 1158
    , 1162 (5th
Cir. 1969), its alternative motion for an extension of time to file a brief is
DENIED, and the judgments of the district court are AFFIRMED.
2