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United States v. Reyes-Garrido ( 2021 )


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  • Case: 20-50759   Document: 00515712194   Page: 1   Date Filed: 01/20/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 20, 2021
No. 20-50759                       Lyle W. Cayce
Summary Calendar                          Clerk
United States of America,
Plaintiff—Appellee,
versus
Marcelo Reyes-Garrido,
Defendant—Appellant,
consolidated with
_____________
No. 20-50766
_____________
United States of America,
Plaintiff—Appellee,
versus
Marcelo Garrido-Reyes,
Defendant—Appellant.
Case: 20-50759      Document: 00515712194          Page: 2     Date Filed: 01/20/2021
No. 20-50759
c/w No. 20-50766
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-91-1
USDC No. 4:20-CR-246-1
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Marcelo Reyes-Garrido appeals the 46-month within-guidelines
sentence imposed following his guilty plea conviction 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 for illegal reentry.
Raising one issue on appeal, Reyes-Garrido argues that he is entitled
to resentencing for his new illegal reentry conviction because the sentencing
enhancement provisions set forth under § 1326(b) are unconstitutional. He
concedes that this argument is foreclosed by Almendarez-Torres v. United
States,
    523 U.S. 224
    , 226-27, 229-35 (1998), and he seeks to preserve the
issue for further review. The Government 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 argues, and Reyes-Garrido agrees, the sole issue
raised on appeal is 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,
*
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opinion should not be published and is not precedent except under the limited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.
2
Case: 20-50759     Document: 00515712194         Page: 3     Date Filed: 01/20/2021
No. 20-50759
c/w No. 20-50766
summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis,
    406 F.2d 1158
    , 1162 (5th Cir. 1969).
Although the appeals of Reyes-Garrido’s illegal reentry conviction
and supervised release revocation were consolidated, he does not address the
revocation in his appellate brief. Consequently, he has abandoned any
challenge he could have raised 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, and the judgments of the district court are AFFIRMED.
The Government’s alternative motion for an extension of time to file a brief
is DENIED.
3