United States v. Zuvieta-Moreno

Case: 21-50903 Document: 00516258629 Page: 1 Date Filed: 03/29/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 29, 2022
No. 21-50903
Lyle W. Cayce
Summary Calendar
Clerk
United States of America,
Plaintiff—Appellee,
versus
Alejandro Zubieta-Moreno,
Defendant—Appellant,
consolidated with
No. 21-50916
United States of America,
Plaintiff—Appellee,
versus
Alejandro Zuvieta-Moreno,
Defendant—Appellant.
Case: 21-50903 Document: 00516258629 Page: 2 Date Filed: 03/29/2022
No. 21-50903
c/w No. 21-50916
Appeals from the United States District Court
for the Western District of Texas
USDC No. 2:18-CR-738-1
USDC No. 2:20-CR-1273-1
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Alejandro Zuvieta-Moreno appeals his conviction and sentence for
illegal reentry in violation of 8 U.S.C. § 1326(a) and (b), 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, Zuvieta contends that § 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).
Because summary disposition is appropriate, see Groendyke Transp., Inc. v.
Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Zuvieta’s motion is GRANTED,
and the district court’s judgments are AFFIRMED.
*
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opinion should not be published and is not precedent except under the limited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.
2