United States v. Montoya-Balderrama

Case: 21-50840 Document: 00516213682 Page: 1 Date Filed: 02/23/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 23, 2022
No. 21-50840
consolidated with Lyle W. Cayce
Clerk
No. 21-50853
Summary Calendar
United States of America,
Plaintiff—Appellee,
versus
Jesus Antonio Montoya-Balderrama,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-276-1
USDC No. 4:14-CR-643-4
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
Jesus Antonio Montoya-Balderrama appeals his conviction for illegal
reentry after removal under 8 U.S.C. § 1326(a) and (b)(2), along with the
*
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opinion should not be published and is not precedent except under the limited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: 21-50840 Document: 00516213682 Page: 2 Date Filed: 02/23/2022
No. 21-50840 c/w No. 21-50853
revocation of the term of supervised release he was serving at the time of the
offense. Because his appellate letter brief does not address the validity of the
revocation or the revocation sentence, he abandons any challenge to that
judgment. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
For the first time on appeal, Montoya-Balderrama contends that it
violates the Constitution to treat a prior conviction that increases the
statutory maximum under § 1326(b) as a sentencing factor, rather than as an
element of the offense. He correctly concedes that the argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
wishes to preserve it for further review. Accordingly, Montoya-Balderrama
has moved without opposition for summary affirmance.
As Montoya-Balderrama concedes, the sole issue raised on appeal is
foreclosed by Almendarez-Torres. See United States v. Pervis, 937 F.3d 546,
553-54 (5th Cir. 2019); United States v. Wallace, 759 F.3d 486, 497 (5th Cir.
2014). Indeed, because “there can be no substantial question as to the
outcome of the case,” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162
(5th Cir. 1969), summary affirmance is proper.
Accordingly, the motion for summary affirmance is GRANTED, and
the judgment of the district court is AFFIRMED.
2