United States v. Rios-Hernandez ( 2023 )

Case: 22-51067 Document: 00516764074 Page: 1 Date Filed: 05/25/2023
United States Court of Appeals
for the Fifth Circuit
_____________
United States Court of Appeals
Fifth Circuit
No. 22-51067
consolidated with FILED
No. 22-51074 May 25, 2023
_____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Raul Omar Rios-Hernandez,
Defendant—Appellant.
______________________________
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 4:22-CR-666-1, 4:22-CR-608-1
______________________________
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam: *
Raul Omar Rios-Hernandez appeals his 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 term of supervised release
he was serving at the time of the offense. Because his appellate brief does not
address the revocation or revocation sentence, he has abandoned any
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-51067 Document: 00516764074 Page: 2 Date Filed: 05/25/2023
22-51067
c/w No. 22-51074
challenge to that order. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
For the first time on appeal, Rios-Hernandez argues that his sentence
exceeds the statutory maximum and is therefore unconstitutional because the
district court enhanced his sentence under § 1326(b) 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 the issue 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 his argument is foreclosed, summary disposition is
appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th
Cir. 1969). Accordingly, Rios-Hernandez’s motion for summary disposition
is GRANTED, and the district court’s judgments are AFFIRMED.
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