United States v. Perez-Jimenez

Case: 21-50779 Document: 00516242107 Page: 1 Date Filed: 03/16/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 16, 2022
No. 21-50779
consolidated with Lyle W. Cayce
No. 21-50793 Clerk
Summary Calendar
United States of America,
Plaintiff—Appellee,
versus
Benjamin Perez-Jimenez,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-391-1
USDC No. 4:21-CR-210-1
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
*
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opinion should not be published and is not precedent except under the limited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: 21-50779 Document: 00516242107 Page: 2 Date Filed: 03/16/2022
No. 21-50779
c/w No. 21-50793
Benjamin Perez-Jimenez appeals his conviction and sentence for entry
after deportation under 8 U.S.C. § 1326(a) and (b)(1), along with the
revocation of the term of supervised release he was serving at the time of the
offense. He has not briefed, and has therefore abandoned, any challenge to
the revocation of supervised release or his revocation sentence. See United
States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010).
For the first time on appeal, Perez-Jimenez contends that § 1326(b) is
unconstitutional because it permits a defendant to be sentenced above the
statutory maximum under § 1326(a) 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 correctly concedes that the argument 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). However, he wishes to preserve the
issue for further review and has filed an unopposed motion for summary
disposition. Because summary disposition is appropriate, see Groendyke
Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Perez-Jimenez’s
motion is GRANTED, and the district court’s judgments are
AFFIRMED.
2