eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fifth Circuit
 2021-04

United States v. Calvillo-Palacios ( 2021 )


Menu:
 
  • Case: 20-50870     Document: 00515806306         Page: 1     Date Filed: 04/02/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 20-50870                                 April 2, 2021
consolidated with
No. 20-50881                               Lyle W. Cayce
Summary Calendar                                  Clerk
United States of America,
Plaintiff—Appellee,
versus
Pablo Calvillo-Palacios,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-62-1
USDC No. 4:19-CR-845-1
Before Haynes, Willett, and Ho, 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opinion should not be published and is not precedent except under the limited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: 20-50870      Document: 00515806306             Page: 2   Date Filed: 04/02/2021
No. 20-50870
c/w No. 20-50881
Pablo Calvillo-Palacios appeals his within-guidelines sentence of 96
months and three years of supervised release, imposed following his guilty
plea for illegal reentry after removal from the United States in violation of
    8 U.S.C. § 1326
    . He also appeals the revocation of his supervised release
related to his 2015 illegal reentry conviction and his consecutive 24-month
revocation sentence.
Raising one issue on appeal, Calvillo-Palacios argues that his illegal
reentry sentence, imposed under § 1326(b)(2), 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)(2)
enhancement. 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.      Agreeing that the issue is foreclosed, the
Government has moved for summary affirmance and, in the alternative, a
motion for an extension of time to file a brief.
Although the appeals of Calvillo-Palacios’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).
The parties are correct that Calvillo-Palacios’s argument 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). Accordingly, the Government’s motion for summary affirmance is
GRANTED, see Groendyke Transp., Inc. v. Davis,
    406 F.2d 1158
    , 1162 (5th
Cir. 1969), the Government’s alternative motion for an extension of time to
file a brief is DENIED as moot, and the judgment and revocation order are
AFFIRMED.
2