United States v. Sanchez-Quintero ( 2022 )


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  • Case: 21-50835     Document: 00516225481         Page: 1     Date Filed: 03/04/2022
    United States Court of Appeals
    for the Fifth Circuit
    United States Court of Appeals
    Fifth Circuit
    FILED
    March 4, 2022
    No. 21-50835                            Lyle W. Cayce
    consolidated with                                Clerk
    No. 21-50847
    Summary Calendar
    United States of America,
    Plaintiff—Appellee,
    versus
    Rene Sanchez-Quintero,
    Defendant—Appellant.
    Appeals from the United States District Court
    for the Western District of Texas
    USDC No. 4:21-CR-390-1
    USDC No. 4:21-CR-215-1
    Before Davis, Jones, and Elrod, Circuit Judges.
    Per Curiam:*
    In this consolidated appeal, Rene Sanchez-Quintero challenges his
    conviction and sentence for illegal reentry after removal under 8 U.S.C.
    *
    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    opinion should not be published and is not precedent except under the limited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: 21-50835     Document: 00516225481         Page: 2    Date Filed: 03/04/2022
    No. 21-50835
    c/w No. 21-50847
    § 1326(a) and (b)(2), and a separate judgment revoking the term of
    supervised release imposed in an earlier case. Because his appellate brief
    does not address the validity of the revocation or the revocation sentence,
    Sanchez-Quintero has abandoned any challenge to the revocation judgment.
    See United States v. Reagan, 
    596 F.3d 251
    , 254-55 (5th Cir. 2010).
    With respect to his illegal reentry conviction and sentence, Sanchez-
    Quintero argues for the first time that § 1326(b) is unconstitutional because
    it permits a defendant to be sentenced above the statutory maximum under
    § 1326(a) based on the fact of a prior conviction that was not alleged in the
    indictment or found by a jury beyond a reasonable doubt. He has filed an
    unopposed motion for summary disposition and a letter brief explaining that
    he raises the issue only to preserve it for further review and conceding
    correctly that the issue is foreclosed by Almendarez-Torres v. United States,
    
    523 U.S. 224
     (1998). See United States v. Pervis, 
    937 F.3d 546
    , 553-54 (5th
    Cir. 2019). Because summary disposition is appropriate, see Groendyke
    Transp., Inc. v. Davis, 
    406 F.2d 1158
    , 1162 (5th Cir. 1969), Sanchez-
    Quintero’s motion is GRANTED, and the district court’s judgment is
    AFFIRMED.
    2