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United States v. Mendoza-Nando ( 2022 )


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  • Case: 22-50387   Document: 00516581113   Page: 1   Date Filed: 12/16/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-50387
Summary Calendar                       FILED
December 16, 2022
Lyle W. Cayce
United States of America,                                     Clerk
Plaintiff—Appellee,
versus
Juan Mendoza-Nando,
Defendant—Appellant,
consolidated with
_____________
No. 22-50389
_____________
United States of America,
Plaintiff—Appellee,
versus
Juan Mendoza-Nandho,
Defendant—Appellant.
Case: 22-50387         Document: 00516581113             Page: 2      Date Filed: 12/16/2022
No. 22-50387
c/w No. 22-50389
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 4:21-CR-1078-1, 4:18-CR-102-1
Before Davis, Duncan, and Engelhardt, Circuit Judges.
Per Curiam:*
Juan Mendoza-Nando appeals both his conviction and sentence for
illegal reentry after removal and the revocation of a term of supervised release
and sentence imposed for his previous conviction for transporting illegal
aliens for financial gain. However, he has abandoned any challenge to the
validity of the revocation or the revocation sentence by failing to brief it. See
Yohey v. Collins,
    985 F.2d 222
    , 224–25 (5th Cir. 1993).
For the first time on appeal, Mendoza-Nando argues that his sentence
for the illegal reentry offense 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. He has filed a motion for
summary affirmance, acknowledging that this argument is foreclosed by
Almendarez-Torres v. United States,
    523 U.S. 224
     (1998), and seeking to
preserve it for possible Supreme Court review.
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, Mendoza-Nando is correct that his argument is
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
2
Case: 22-50387      Document: 00516581113         Page: 3   Date Filed: 12/16/2022
No. 22-50387
c/w No. 22-50389
foreclosed, and summary affirmance is appropriate. See Groendyke Transp.,
Inc. v. Davis,
    406 F.2d 1158
    , 1162 (5th Cir. 1969).
Accordingly, the motion for summary affirmance is GRANTED, and
the judgment of the district court is AFFIRMED.
3