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United States v. Vazquez ( 2023 )


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  • Case: 22-50174   Document: 00516619724   Page: 1   Date Filed: 01/23/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-50174
FILED
January 23, 2023
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Andres Abrahan Vazquez,
Defendant—Appellant,
consolidated with
_____________
No. 22-50177
_____________
United States of America,
Plaintiff—Appellee,
versus
Andres Abraham Hernandez-Vasquez,
Defendant—Appellant.
Case: 22-50174          Document: 00516619724              Page: 2       Date Filed: 01/23/2023
No. 22-50174
c/w No. 22-50177
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 4:21-CR-942-1, 4:21-CR-1017-1
Before Wiener, Elrod, and Engelhardt, Circuit Judges.
Per Curiam:*
Andres Abrahan Vazquez 1 appeals the sentence imposed after his
guilty plea conviction for illegal reentry after having previously been
deported, pursuant to
    8 U.S.C. § 1326
    (a) and (b)(2), along with the
revocation of the term of supervised release he was serving at the time of the
instant offense. Because his appellate brief does not address the validity of
the revocation or the revocation sentence, he abandons any challenge to that
order. See Yohey v. Collins,
    985 F.2d 222
    , 224-25 (5th Cir. 1993).
Vazquez contends, for the first time on appeal, that it violates the
Constitution to treat a prior conviction that increases the statutory maximum
under § 1326(b) as a sentencing factor, rather than as an element of the
offense. Vazquez concedes that this issue is foreclosed by Almendarez-Torres
v. United States,
    523 U.S. 224
     (1998), but he seeks to preserve the issue for
future review. In addition, he has filed an unopposed motion for summary
disposition.
As Vazquez concedes, the sole issue raised on appeal is foreclosed by
Almendarez-Torres. See United States v. Pervis,
    937 F.3d 546
    , 553-54 (5th Cir.
2019); United States v. Wallace,
    759 F.3d 486
    , 497 (5th Cir. 2014). Because
his position “is clearly right as a matter of law so that there can be no
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
1
The official case caption in No. 22-50177 identifies the defendant-appellant as
Andres Abraham Hernandez-Vasquez. We use the name “Vazquez” throughout this
opinion.
2
Case: 22-50174     Document: 00516619724         Page: 3    Date Filed: 01/23/2023
No. 22-50174
c/w No. 22-50177
substantial question as to the outcome of the case,” Groendyke Transp., Inc.
v. Davis,
    406 F.2d 1158
    , 1162 (5th Cir. 1969), summary disposition is proper.
Accordingly, Vazquez’s motion for summary disposition is GRANTED,
and the judgment of the district court and order revoking supervised release
are AFFIRMED.
3