United States v. Morales-Agustin ( 2022 )

Case: 21-50624 Document: 00516231752 Page: 1 Date Filed: 03/09/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 9, 2022
No. 21-50624
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jesus Morales-Agustin,
Defendant—Appellant,
consolidated with
_____________
No. 21-50625
_____________
United States of America,
Plaintiff—Appellee,
versus
Jesus Francisco Augustine-Morales,
Defendant—Appellant.
Case: 21-50624 Document: 00516231752 Page: 2 Date Filed: 03/09/2022
No. 21-50624
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:20-CR-1135
USDC No. 2:20-CR-1186
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
In this consolidated appeal, Jesus Francisco Augustin-Morales 1
challenges the sentence imposed following his guilty plea conviction for
illegal reentry into the United States after removal, see 8 U.S.C. § 1326(a),
(b)(2), and a separate judgment revoking the supervised release term
imposed in an earlier case, see 18 U.S.C. § 3583(e). Because he does not
address, in his motion for summary affirmance or letter brief, the validity of
the revocation or the revocation sentence, Augustin-Morales has abandoned
any challenge to the revocation judgment. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993).
As noted, Augustin-Morales moves for summary affirmance, to which
the Government is unopposed. Augustin-Morales argues for the first time
on appeal that the enhancement of his illegal reentry sentence pursuant to
§ 1326(b)(2) was unconstitutional because the fact of his prior conviction was
not charged in his indictment or proved to a jury beyond a reasonable doubt.
However, he concedes that this argument is foreclosed by Almendarez-Torres
*
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opinion should not be published and is not precedent except under the limited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.
1
The district court in the matters underlying Nos. 21-50624 and 21-50625 uses
several close variations of “Jesus Francisco Augustin-Morales” but this version is listed as
Augustin-Morales’s true name in the underlying matter in No. 21-50624 and appears on
certain district court documents in both cases. We therefore use this version.
2
Case: 21-50624 Document: 00516231752 Page: 3 Date Filed: 03/09/2022
No. 21-50624
v. United States, 523 U.S. 224 (1998), and raises the issue to preserve it for
further review.
We conclude that Augustin-Morales’s concession of foreclosure is
correct and summary affirmance is appropriate. See United States v. Pervis,
937 F.3d 546, 553-54 (5th Cir. 2019); Groendyke Transp., Inc. v. Davis, 406
F.2d 1158, 1162 (5th Cir. 1969).
The motion for summary affirmance is GRANTED, and the
judgments of the district court are AFFIRMED.
3