United States v. Flores-Salcido ( 2023 )

Case: 22-50902 Document: 00516738924 Page: 1 Date Filed: 05/04/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50902
Summary Calendar FILED
____________ May 4, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Everardo Joe Flores-Salcido,
Defendant—Appellant,
consolidated with
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No. 22-50903
_____________
United States of America,
Plaintiff—Appellee,
versus
Everado Flores-Salcido,
Defendant—Appellant.
______________________________
Appeals from the United States District Court
for the Western District of Texas
Case: 22-50902 Document: 00516738924 Page: 2 Date Filed: 05/04/2023
USDC Nos. 4:19-CR-186-1,
4:22-CR-343-1
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Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
Everado Joe Flores-Salcido’s appeal of the six-month sentence of
imprisonment imposed following his guilty plea conviction for illegal reentry
after deportation from the United States has been consolidated with his
appeal of the judgment revoking the term of supervised release he was serving
at the time of the offense. Because his appellate brief does not address the
revocation or the revocation sentence, he abandons any challenge to that
judgment. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Flores-Salcido challenges the district court’s application of the
enhanced penalty range in § 1326(b) as unconstitutional because it permits a
defendant to be sentenced above the statutory maximum of § 1326(a) based
on the fact of a prior conviction that was not alleged in the indictment or
found by a jury beyond a reasonable doubt. He raises the issue to preserve it
for further review and has filed an unopposed motion for summary
disposition, correctly conceding that it is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998). See United States v. Pervis, 937 F.3d 546,
553-54 (5th Cir. 2019).
Because summary disposition is appropriate, see Groendyke Transp.,
Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Flores-Salcido’s motion is
GRANTED, and the district court’s judgment is AFFIRMED.
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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