United States v. Gallegos-Quirino

Case: 21-51090 Document: 00516260185 Page: 1 Date Filed: 03/30/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
No. 21-51090 Fifth Circuit
consolidated with FILED
No. 21-51093 March 30, 2022
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Daniel Gallegos-Quirino,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-837-1
USDC No. 4:21-CR-540-1
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Daniel Gallegos-Quirino appeals his conviction for illegal reentry after
removal under 8 U.S.C. § 1326(a) and (b)(2), along with the revocation of 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opinion should not be published and is not precedent except under the limited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: 21-51090 Document: 00516260185 Page: 2 Date Filed: 03/30/2022
No. 21-51090 c/w
No. 21-51093
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, Gallegos-Quirino 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. The Government has moved without
opposition for summary affirmance or, alternatively, for an extension of time
to file its brief.
As the Government asserts and as Gallegos-Quirino 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). Because the Government’s position “is
clearly right as a matter of law so that 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. The Government’s
alternative motion for an extension of time is DENIED as MOOT.
2