United States v. Eguis-Portillo

Case: 22-50899 Document: 00516701788 Page: 1 Date Filed: 04/05/2023
United States Court of Appeals
for the Fifth Circuit
_____________
United States Court of Appeals
Fifth Circuit
No. 22-50899
consolidated with FILED
No. 22-50913 April 5, 2023
Summary Calendar Lyle W. Cayce
_____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Jose Manuel Eguis-Portillo,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC Nos. 4:22-CR-358-1, 4:18-CR-37-1
______________________________
Before Smith, Southwick, and Douglas, Circuit Judges.
Per Curiam: *
Jose Manuel Eguis-Portillo appeals his conviction and sentence for
illegal entry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2), as
well as the judgment revoking his term of supervised release for a prior
offense. He has not briefed, and has therefore abandoned, any challenge to
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50899 Document: 00516701788 Page: 2 Date Filed: 04/05/2023
No. 22-50899
c/w No. 22-50913
the revocation of supervised release or his revocation sentence. See Yohey v.
Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).
For the first time on appeal, Eguis-Portillo contends that Section
1326(b) is unconstitutional because it allows for a sentence above the
otherwise applicable statutory maximum based on facts that are neither
alleged in the indictment nor found by a jury beyond a reasonable doubt. He
has filed an unopposed motion for summary disposition and a letter brief
explaining that he raises this issue only to preserve it for further review and
conceding correctly that it 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). The motion is GRANTED, and the district court’s
judgments are AFFIRMED.
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