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United States v. Cadenas ( 2023 )


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  • Case: 23-50094       Document: 00516813730             Page: 1      Date Filed: 07/07/2023
United States Court of Appeals
for the Fifth Circuit
_____________
United States Court of Appeals
Fifth Circuit
No. 23-50094
consolidated with                                   FILED
No. 23-50097                                 July 7, 2023
Summary Calendar                             Lyle W. Cayce
_____________                                     Clerk
United States of America,
Plaintiff—Appellee,
versus
Mario Rolando Cadenas,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC Nos. 4:22-CR-681-1,
4:19-CR-657-1
______________________________
Before Jones, Southwick, and Ho, Circuit Judges.
Per Curiam: *
Mario Rolando Cadenas appeals his conviction and sentence for illegal
reentry after removal, as well as the order revoking the term of supervised
_____________________
*
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should not be published and is not precedent except under the limited circumstances set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: 23-50094      Document: 00516813730          Page: 2     Date Filed: 07/07/2023
No. 23-50094
c/w No. 23-50097
release he was serving at the time of the offense. Regarding the illegal reentry
offense, he argues that
    8 U.S.C. § 1326
    (b) is unconstitutional because it
allows a sentence above the otherwise applicable statutory maximum
established by § 1326(a) based on facts that are neither alleged in the
indictment nor found by a jury beyond a reasonable doubt. Because Cadenas
does not address the revocation or the revocation sentence, he has abandoned
any challenge to them. See Yohey v. Collins,
    985 F.2d 222
    , 224-25 (5th Cir.
1993).
Cadenas has filed an unopposed motion for summary disposition and
a letter brief correctly conceding that the only issue he raises 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). He explains that he has raised
the issue to preserve it for possible further review. Accordingly, because
summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis,
    406 F.2d 1158
    , 1162 (5th Cir. 1969), Cadenas’s motion is GRANTED, and
the district court’s judgments are AFFIRMED.
2