United States v. Escalera ( 2023 )

Case: 22-40669 Document: 00516738879 Page: 1 Date Filed: 05/04/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 22-40669 FILED
Summary Calendar May 4, 2023
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Javier Escalera, Jr.,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:20-CR-1654-1
______________________________
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam:*
Javier Escalera, Jr., appeals his 60-month prison terms for conspiracy
to possess with intent to distribute 100 grams or more of heroin and
possession with intent to distribute 100 grams or more of heroin. He
challenges the district court’s determination that he was ineligible for the
safety valve under 18 U.S.C. § 3553(f) because he has a prior offense that
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40669 Document: 00516738879 Page: 2 Date Filed: 05/04/2023
No. 22-40669
received three criminal history points. Escalera contends that, under
§ 3553(f)(1), a defendant’s criminal history precludes relief only if he has
more than four criminal history points (not counting one-point offenses), a
prior three-point offense, and a prior two-point violent offense. However, he
concedes that the issue is foreclosed by our holding in United States v.
Palomares, 52 F.4th 640, 642, 647 (5th Cir. 2022), petition for cert. filed (U.S.
Dec. 21, 2022) (No. 22-340), that a defendant is ineligible for the safety valve
if his criminal history satisfies just one of those conditions.
Because the sole issue is foreclosed and “there can be no substantial
question as to the outcome of the case,” the Government’s motion for
summary affirmance is GRANTED, Groendyke Transp., Inc. v. Davis, 406
F.2d 1158, 1162 (5th Cir. 1969), and the judgment of the district court is
AFFIRMED. The Government’s alternative motion for an extension of
time to file its appellate brief is DENIED. Escalera’s motion to hold the
appeal in abeyance pending the Supreme Court’s decision in Pulsifer v.
United States, 39 F.4th 1018 (8th Cir. 2022), cert. granted (U.S. Feb. 27, 2023)
(No. 21-1609), is DENIED. See United States v. Lopez-Velasquez, 526 F.3d
804, 808 n.1 (5th Cir. 2008).
2