United States v. Fierro-Renteria

Case: 21-50999 Document: 00516259662 Page: 1 Date Filed: 03/30/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 30, 2022
No. 21-50999
consolidated with Lyle W. Cayce
No. 21-51014 Clerk
Summary Calendar
United States of America,
Plaintiff—Appellee,
versus
Jesus Fernando Fierro-Renteria,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-340-1
USDC No. 4:21-CR-480-1
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Jesus Fernando Fierro-Renteria appeals his conviction and sentence
for reentering the United States after deportation in violation of 8 U.S.C.
*
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opinion should not be published and is not precedent except under the limited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: 21-50999 Document: 00516259662 Page: 2 Date Filed: 03/30/2022
No. 21-50999
c/w No. 21-51014
§ 1326(a) and (b)(1), along with the revocation of a 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 Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir.
1993).
For the first time on appeal, Fierro-Renteria argues 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 his 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); United States v. Wallace, 759 F.3d 486, 497
(5th Cir. 2014). However, he wishes to preserve the issue for further review.
Because Fierro-Renteria’s sole argument is foreclosed, he has moved without
opposition for summary disposition of his appeals.
Summary disposition of an appeal is proper where “the position of
one of the parties 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). Accordingly, the motion for
summary disposition is GRANTED, and the judgments of the district court
are AFFIRMED.
2