United States v. Pena-Garcia ( 2022 )

Case: 21-50730 Document: 00516260596 Page: 1 Date Filed: 03/30/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
No. 21-50730 Fifth Circuit
consolidated with FILED
No. 21-50747 March 30, 2022
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Eduardo Pena-Garcia,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 4:21-CR-523-1, 4:21-CR-125-1
Before Higginbotham, Duncan, and Engelhardt, Circuit Judges.
Per Curiam:*
Eduardo Pena-Garcia appeals the 63-month sentence imposed after
his guilty plea conviction for illegal reentry after having previously been
deported, pursuant to 8 U.S.C. § 1326(a) and (b)(1), along with the
*
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opinion should not be published and is not precedent except under the limited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: 21-50730 Document: 00516260596 Page: 2 Date Filed: 03/30/2022
No. 21-50730
c/w No. 21-50747
revocation of the term of supervised release he was serving at the time of the
instant offense. Because his appellate brief does not address the validity of
the revocation or the revocation sentence, he abandons any challenge to that
order. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Pena-Garcia contends, for the first time on appeal, that it violates the
Constitution to treat a prior conviction that increases the statutory maximum
under § 1326(b) as a sentencing factor, rather than as an element of the
offense. Pena-Garcia concedes that this issue is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve the issue
for future review. In addition, he has filed an unopposed motion for summary
disposition.
As Pena-Garcia concedes, the sole issue raised on appeal is foreclosed
by Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th
Cir. 2019); United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014).
Because his position “is clearly right as a matter of law so that there can be
no substantial question as to the outcome of the case,” Groendyke Transp.,
Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), summary disposition is
proper. Accordingly, Pena-Garcia’s motion for summary disposition is
GRANTED, and the judgment of the district court and order revoking
supervised release are AFFIRMED.
2