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United States v. Cuevas-Rauldalez ( 2021 )


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  • Case: 21-50298     Document: 00516084574         Page: 1     Date Filed: 11/08/2021
United States Court of Appeals
for the Fifth Circuit                               United States Court of Appeals
Fifth Circuit
FILED
No. 21-50298                           November 8, 2021
consolidated with                            Lyle W. Cayce
No. 21-50300                                  Clerk
Summary Calendar
United States of America,
Plaintiff—Appellee,
versus
Edgar Cuevas-Rauldalez,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-472-1
USDC No. 4:20-CR-487-1
Before Southwick, Oldham, and Wilson, 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opinion should not be published and is not precedent except under the limited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: 21-50298      Document: 00516084574             Page: 2   Date Filed: 11/08/2021
No. 21-50298
c/w No. 21-50300
Appealing the judgments in two criminal cases, Edgar Cuevas-
Rauldalez challenges his sentence of 24 months of imprisonment and three
years of supervised release for illegal reentry. As the sole issue on appeal, he
argues that the enhancement of his sentence pursuant to
    8 U.S.C. § 1326
    (b)(1) is unconstitutional because the enhancement is based on facts
neither alleged in his indictment nor proved to a jury beyond a reasonable
doubt. The Government has filed an unopposed motion for summary
affirmance arguing that the issue is foreclosed and, in the alternative, a
motion for an extension of time to file a brief.
As the Government argues, and Cuevas-Rauldalez concedes, this
issue is foreclosed by Almendarez-Torres v. United States,
    523 U.S. 224
    , 239-
47 (1998). See United States v. Wallace,
    759 F.3d 486
    , 497 (5th Cir. 2014);
United States v. Rojas-Luna,
    522 F.3d 502
    , 505-06 (5th Cir. 2008). Thus,
summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis,
    406 F.2d 1158
    , 1162 (5th Cir. 1969).
Although the appeals of Cuevas-Rauldalez’s illegal reentry conviction
and supervised release revocation were consolidated, he does not address the
revocation in his appellate brief. He has, therefore, abandoned any challenge
to the revocation or revocation sentence. See Yohey v. Collins,
    985 F.2d 222
    ,
224-25 (5th Cir. 1993).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, the Government’s alternative motion for an extension of time
to file a brief is DENIED, and the judgments of the district court are
AFFIRMED.
2