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United States v. Barraza-Soto ( 2021 )


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  • Case: 20-50627      Document: 00515754644         Page: 1    Date Filed: 02/23/2021
United States Court of Appeals
for the Fifth Circuit                              United States Court of Appeals
Fifth Circuit
FILED
February 23, 2021
No. 20-50627
consolidated with                          Lyle W. Cayce
No. 20-50631                                Clerk
Summary Calendar
United States of America,
Plaintiff—Appellee,
versus
Rosalio Barraza-Soto,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-831-1
USDC No. 4:20-CR-55-1
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Rosalio Barraza-Soto appeals the 24-month within-guidelines
sentence imposed following his guilty plea conviction for illegal reentry after
*
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opinion should not be published and is not precedent except under the limited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: 20-50627      Document: 00515754644          Page: 2     Date Filed: 02/23/2021
No. Error! Reference source not found.
c/w No. 20-50631
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, Barraza-Soto argues that his new illegal
reentry sentence, imposed under § 1326(b)(1), violates his due process rights
by exceeding the two-year statutory maximum set forth in § 1326(a) because
the indictment did not allege a prior conviction necessary for the § 1326(b)(1)
enhancement. He concedes that this argument is foreclosed by Almendarez-
Torres v. United States,
    523 U.S. 224
    , 226-27 (1998), but 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 Barraza-Soto concedes, 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,
summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis,
    406 F.2d 1158
    , 1162 (5th Cir. 1969).
Although the appeals of Barraza-Soto’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 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 as moot.
2