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United States v. Gonzalez-Pargas ( 2023 )


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  • Case: 22-50148        Document: 00516650187             Page: 1      Date Filed: 02/17/2023
United States Court of Appeals
for the Fifth Circuit
_________________
United States Court of Appeals
Fifth Circuit
No. 22-50148
consolidated with                                    FILED
No. 22-50159                              February 17, 2023
Summary Calendar                              Lyle W. Cayce
_________________                                    Clerk
United States of America,
Plaintiff—Appellee,
versus
Efrain Gonzalez-Pargas,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-959-1
USDC No. 4:21-CR-865-1
______________________________
Before Stewart, Dennis, and Willett, Circuit Judges.
Per Curiam: *
Efrain Gonzalez-Pargas appeals his sentence for illegal reentry after
removal, as well as the judgment revoking his term of supervised release for
committing the new offense.            He has not briefed, and has therefore
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50148       Document: 00516650187         Page: 2    Date Filed: 02/17/2023
No. 22-50148
c/w No. 22-50159
abandoned, any challenge to the revocation of supervised release or his
revocation sentence. See Yohey v. Collins,
    985 F.2d 222
    , 224-25 (5th Cir.
1993).
For the first time on appeal, Gonzalez-Pargas argues that his sentence
exceeds the statutory maximum and is therefore unconstitutional because the
district court enhanced his sentence under
    8 U.S.C. § 1326
    (b) based on facts
that were neither alleged in the indictment nor found by a jury beyond a
reasonable doubt. While he acknowledges this argument is foreclosed by
Almendarez-Torres v. United States,
    523 U.S. 224
     (1998), he nevertheless
seeks to preserve it for possible Supreme Court review.          Accordingly,
Gonzalez-Pargas has filed an unopposed motion for summary disposition.
Subsequent Supreme Court decisions such as Alleyne v. United States,
    570 U.S. 99
     (2013), and Apprendi v. New Jersey,
    530 U.S. 466
     (2000), did not
overrule Almendarez-Torres. See United States v. Pervis,
    937 F.3d 546
    , 553-54
(5th Cir. 2019). Thus, Gonzalez-Pargas is correct that his argument is
foreclosed, and summary disposition is appropriate. See Groendyke Transp.,
Inc. v. Davis,
    406 F.2d 1158
    , 1162 (5th Cir. 1969).
Gonzalez-Pargas’s motion is GRANTED, and the district court’s
judgments are AFFIRMED.
2