United States v. Avalos-Sanchez ( 2023 )

Case: 23-50342 Document: 00517000539 Page: 1 Date Filed: 12/13/2023
United States Court of Appeals
for the Fifth Circuit
_____________
United States Court of Appeals
Fifth Circuit
No. 23-50342
consolidated with FILED
No. 23-50356 December 13, 2023
Summary Calendar Lyle W. Cayce
_____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Jose Luis Avalos-Sanchez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC Nos. 2:20-CR-254-1,
2:22-CR-682-1
______________________________
Before Dennis, Elrod, and Wilson, Circuit Judges.
Per Curiam: *
Jose Luis Avalos-Sanchez appeals his conviction and sentence for
illegal reentry in violation of 8 U.S.C. § 1326(a) and (b) as well as the
judgment revoking his supervised release for a prior offense. He has not
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-50342 Document: 00517000539 Page: 2 Date Filed: 12/13/2023
23-50342
c/w No. 23-50356
briefed, and has therefore abandoned, any challenge to the revocation of
supervised release or to the revocation sentence. See United States v. Reagan,
596 F.3d 251, 254-55 (5th Cir. 2010).
Avalos-Sanchez contends that the enhancement of his illegal-reentry
sentence pursuant to § 1326(b) is unconstitutional because the fact of a prior
conviction was not charged and proved beyond a reasonable doubt. He has
filed a letter brief and an unopposed motion for summary disposition in
which, explaining that he seeks to preserve the issue for further review, he
concedes this argument is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224 (1998). Because Avalos-Sanchez is correct that his argument is
foreclosed, see United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019),
summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406
F.2d 1158, 1162 (5th Cir. 1969).
Avalos-Sanchez’s motion for summary disposition is GRANTED,
and the district court’s judgments are AFFIRMED.
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