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United States v. Soto-Rueda ( 2021 )


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  • Case: 20-50764     Document: 00515809609         Page: 1     Date Filed: 04/06/2021
United States Court of Appeals
for the Fifth Circuit                             United States Court of Appeals
Fifth Circuit
FILED
No. 20-50764                             April 6, 2021
consolidated with                          Lyle W. Cayce
No. 20-50777                                Clerk
Summary Calendar
United States of America,
Plaintiff—Appellee,
versus
Arturo Soto-Rueda,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-197-1
USDC No. 4:20-CR-237-1
Before Davis, Stewart, and Dennis, 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opinion should not be published and is not precedent except under the limited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: 20-50764      Document: 00515809609           Page: 2    Date Filed: 04/06/2021
No. 20-50764
c/w No. 20-50777
Arturo Soto-Rueda appeals the within-guidelines sentence of 24
months of imprisonment and three years of supervised release 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, Soto-Rueda 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 Soto-Rueda 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, summary affirmance is appropriate. See Groendyke Transp., Inc.
v. Davis,
    406 F.2d 1158
    , 1162 (5th Cir. 1969).
Although the appeals of Soto-Rueda’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.
2
Case: 20-50764     Document: 00515809609        Page: 3    Date Filed: 04/06/2021
No. 20-50764
c/w No. 20-50777
The Government’s alternative motion for an extension of time to file a brief
is DENIED.
3