United States v. Ventura-Recinos ( 2023 )

Case: 22-50852 Document: 00516734936 Page: 1 Date Filed: 05/02/2023
United States Court of Appeals
for the Fifth Circuit
_____________
United States Court of Appeals
Fifth Circuit
No. 22-50852
consolidated with FILED
No. 22-50865 May 2, 2023
Summary Calendar Lyle W. Cayce
_____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Rudy Alexander Ventura-Recinos,
Defendant—Appellant.
______________________________
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 4:22-CR-126-1,
4:22-CR-175-1
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Before Jolly, Oldham, and Wilson, Circuit Judges.
Per Curiam: *
Rudy Alexander Ventura-Recinos appeals his guilty plea conviction
and sentence for illegal reentry into the United States under 8 U.S.C.
§ 1326(a) and (b)(1). He also appeals the district court’s order revoking the
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50852 Document: 00516734936 Page: 2 Date Filed: 05/02/2023
22-50852
c/w No. 22-50865
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 order. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993).
Ventura-Recinos 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), Ventura-Recinos’s motion
is GRANTED, and the district court’s judgments are AFFIRMED.
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