United States v. Vasquez-Santana ( 2023 )

Case: 22-50459 Document: 00516655763 Page: 1 Date Filed: 02/24/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
_____________ Fifth Circuit
FILED
No. 22-50459 February 24, 2023
consolidated with Lyle W. Cayce
No. 22-50460 Clerk
Summary Calendar
_____________
United States of America,
Plaintiff—Appellee,
versus
Alejandro Vasquez-Santana,
Defendant—Appellant.
______________________________
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 4:22-CR-34-1, 7:16-CR-298-1
______________________________
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam: *
_____________________
*
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opinion should not be published and is not precedent except under the limited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: 22-50459 Document: 00516655763 Page: 2 Date Filed: 02/24/2023
Alejandro Vasquez-Santana appeals his sentence for illegal reentry
into the United States under 8 U.S.C. § 1326(a) and (b)(2), as well as the
judgment revoking his term of supervised release for committing the new
offense. He has not briefed, and has therefore abandoned, any challenge to
the revocation judgment imposed in the consolidated case. See United States
v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010).
Vasquez-Santana argues that the recidivism enhancement in
§ 1326(b) is unconstitutional because it permits a sentence above the
applicable maximum in § 1326(a), based on facts neither alleged in the
indictment nor found by a jury beyond a reasonable doubt. His three-year
term of supervised release also exceeds the maximum in § 1326(a). Vasquez-
Santana acknowledges that his argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he nevertheless seeks to preserve it
for possible Supreme Court review. Accordingly, Vasquez-Santana has filed
an unopposed motion for summary disposition.
We have held that 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). As Vasquez-Santana concedes
that his argument is foreclosed, summary disposition is appropriate. See
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Vasquez-Santana’s motion is GRANTED, and the district court’s
judgments are AFFIRMED.