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United States v. Jesus Urbina-Lopez ( 2020 )


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  •     Case: 19-51025   Document: 00515484626   Page: 1   Date Filed: 07/10/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
No. 19-51025                     July 10, 2020
Summary Calendar                  Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
JESUS URBINA-LOPEZ, also known as Jesus Ubina-Lopez,
Defendant−Appellant.
************************************************************
Consolidated with 19-51027
UNITED STATES OF AMERICA,
Plaintiff−Appellee
versus
JESUS URBINA-LOPEZ, also known as Jesus Ubina-Lopez,
also known as Jesus Lopez-Ubina, also known as Jesus Uvina Lopez,
also known as Jose Lopez Lopez, also known as Jesus Nunez-Lopez,
also known as Jesus Lopez Urbina, also known as Jose Lopez Urbina,
also known as Jesus Lopez, also known as Jesus Ubina Lopez,
also known as Jesus Urbina Lopez, also known as Jose Lopez,
also known as Urvina Lopez, also known as Jesus Urbina,
also known as Jose L Urbina, also known as Lopez Jesus Urbina,
also known as Jesus Urvina L,
Defendant−Appellant.
Case: 19-51025       Document: 00515484626         Page: 2    Date Filed: 07/10/2020
No. 19-51025
No. 19-51027
Appeals from the United States District Court
for the Western District of Texas
No. 4:19-CR-48-1
No. 4:19-CR-23-1
Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Jesus Urbina-Lopez appeals the 16-month within-guidelines sentence
imposed for illegal reentry after removal from the United States in violation of
8 U.S.C. § 1326. He also appeals the concomitant revocation of his supervised
release related to his prior conviction of illegal reentry.
Raising one issue on appeal, Urbina-Lopez urges that his new illegal-
reentry sentence, imposed under § 1326(b)(1), violates his due process rights
by exceeding the two-year statutory maximum in § 1326(a) because the indict-
ment did not allege the prior conviction necessary for the § 1326(b)(1) enhance-
ment. He concedes that this argument is foreclosed by Almendarez-Torres v.
United States,
    523 U.S. 224
    , 226−27 (1998), but seeks to preserve the issue for
further review. The government has filed an unopposed motion for summary
affirmance, agreeing that the issue is foreclosed and, in the alternative, a
motion for an extension of time to file a brief.
As the government says and Urbina-Lopez concedes, the sole issue is
*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.
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Case: 19-51025    Document: 00515484626     Page: 3   Date Filed: 07/10/2020
No. 19-51025
No. 19-51027
foreclosed by Almendarez-Torres. See United States v. Wallace,
    759 F.3d 486
    ,
497 (5th Cir. 2014); United States v. Pineda-Arrellano,
    492 F.3d 624
    , 625−26
(5th Cir. 2007). Because the issue is foreclosed, summary affirmance is appro-
priate. See Groendyke Transp., Inc. v. Davis,
    406 F.2d 1158
    , 1162 (5th Cir.
1969).
Although the appeals of Urbina-Lopez’s illegal-reentry conviction and
supervised-release revocation were consolidated, he does not address the revo-
cation in his appellate brief. Consequently, he has abandoned any challenge
to the revocation or the revocation sentence. See United States v. Beaumont,
    972 F.2d 553
    , 563 (5th Cir. 1992).
Accordingly, the government’s motion for summary affirmance is
GRANTED, and the judgments are AFFIRMED. The government’s alternative
motion for an extension of time to file its brief is DENIED.
3