United States v. Macias-Ramirez ( 2023 )

Case: 22-50789 Document: 00516768497 Page: 1 Date Filed: 05/30/2023
United States Court of Appeals
for the Fifth Circuit
_____________
United States Court of Appeals
Fifth Circuit
No. 22-50789
consolidated with FILED
No. 22-50816 May 30, 2023
Summary Calendar Lyle W. Cayce
_____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Manuel Ramon Macias-Ramirez,
Defendant—Appellant.
______________________________
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 4:22-CR-217-1, 4:22-CR-530-1
______________________________
Before Davis, Smith, and Douglas, Circuit Judges.
Per Curiam: *
Manuel Ramon Macias-Ramirez 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
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50789 Document: 00516768497 Page: 2 Date Filed: 05/30/2023
22-50789
c/w No. 22-50816
does not address the revocation or revocation sentence, he has abandoned
any challenge to that order. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993).
For the first time on appeal, Macias-Ramirez 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, Macias-Ramirez’s motion for summary disposition
is GRANTED, and the district court’s judgments are AFFIRMED.
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