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United States v. Mayor-Curruchich ( 2021 )


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  • Case: 20-50782     Document: 00515772312         Page: 1     Date Filed: 03/09/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 20-50782
FILED
consolidated with                             March 9, 2021
No. 20-50797
Summary Calendar                           Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Celso Mayor-Curruchich,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-194-1
USDC No. 4:19-CR-473-1
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Celso Mayor-Curruchich appeals the sentence imposed following his
guilty plea conviction for illegal reentry into the United States after having
*
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opinion should not be published and is not precedent except under the limited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: 20-50782       Document: 00515772312          Page: 2     Date Filed: 03/09/2021
No. Error! Reference source not found.
c/w No. 20-50797
been removed, in violation of
    8 U.S.C. § 1326
    .             He also appeals the
concomitant revocation of his supervised release related to his prior illegal
reentry conviction.
Mayor-Curruchich argues that the enhanced sentencing provision in
§ 1326(b)(1) is unconstitutional because it increases the statutory maximum
sentence based on the fact of a prior felony conviction neither alleged in the
indictment nor found by a jury beyond a reasonable doubt. He concedes that
this argument is foreclosed by Almendarez-Torres v. United States,
    523 U.S. 224
     (1998), but he wishes 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 argues, and Mayor-Curruchich concedes, the sole
issue raised on appeal is foreclosed by Almendarez-Torres. See Apprendi v.
New Jersey,
    530 U.S. 466
    , 476, 490 (2000); Almendarez-Torres,
    523 U.S. at 226-27
    ; United States v. Wallace,
    759 F.3d 486
    , 497 (5th Cir. 2014); United
States v. Garza-Lopez,
    410 F.3d 268
    , 276 (5th Cir. 2005). Because the
Government’s position “is clearly right as a matter of law so that there can
be no substantial question as to the outcome of the case,” Groendyke Transp.,
Inc. v. Davis,
    406 F.2d 1158
    , 1162 (5th Cir. 1969), summary affirmance is
appropriate.
Although the appeals of Mayor-Curruchich’s illegal reentry
conviction and supervised release revocation were consolidated, he has not
briefed any challenge to the revocation or the revocation sentence.
Consequently, he has waived any challenge to the revocation and revocation
sentence on appeal. See United States v. Thames,
    214 F.3d 608
    , 611 n.3 (5th
Cir. 2000); Fed. R. App. P. 28(a)(8)(A).
2
Case: 20-50782    Document: 00515772312        Page: 3     Date Filed: 03/09/2021
No. Error! Reference source not found.
c/w No. 20-50797
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.
3