United States v. Calvo-Perez ( 2023 )

Case: 22-50495 Document: 00516636929 Page: 1 Date Filed: 02/07/2023
United States Court of Appeals
for the Fifth Circuit
_____________ United States Court of Appeals
Fifth Circuit
No. 22-50495 FILED
consolidated with February 7, 2023
No. 22-50496 Lyle W. Cayce
Summary Calendar Clerk
_____________
United States of America,
Plaintiff—Appellee,
versus
Bequer Calvo-Perez,
Defendant—Appellant.
______________________________
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 4:22-CR-30-1, 4:21-CR-801-1
______________________________
Before Stewart, Dennis, and Willett, Circuit Judges.
Per Curiam: *
Bequer Calvo-Perez appeals his conviction and sentence for illegal
reentry after removal in violation of 8 U.S.C. § 1326(a) and (b)(1), along with
the revocation of a term of supervised release he was serving for a prior
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50495 Document: 00516636929 Page: 2 Date Filed: 02/07/2023
No. 22-50495
c/w No. 22-50496
offense. He has not briefed the validity of the revocation of his supervised
release or his revocation sentence and has, therefore, abandoned any
challenge to them. See United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir.
2010).
In his sole issue on appeal, Calvo-Perez contends that § 1326(b) is
unconstitutional because it permits a sentence above the otherwise-
applicable statutory maximum based on facts that were neither alleged in the
indictment nor found by a jury beyond a reasonable doubt. He has filed an
unopposed motion for summary disposition and a letter brief explaining that
he has raised this issue only to preserve it for further review and conceding
that this 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), Calvo-Perez’s motion is
GRANTED, and the district court’s judgment is AFFIRMED.
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