USA v. Marco Lopez-Sanchez, No. 20-50115 (5th Cir. 2020)
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Case: 20-50109 Document: 00515540517 Page: 1 Date Filed: 08/25/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 25, 2020 No. 20-50109 consolidated with No. 20-50115 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Marco Antonio Lopez-Sanchez, Defendant—Appellant. Appeals from the United States District Court for the Western District of Texas USDC No. 4:19-CR-619-1 USDC No. 4:17-CR-157-1 Before Haynes, Willett, and Ho, Circuit Judges. Per Curiam:* Marco Antonio Lopez-Sanchez appeals the 21-month prison sentence and three-year term of supervised release imposed following his guilty plea * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 20-50109 Document: 00515540517 Page: 2 Date Filed: 08/25/2020 No. 20-50109 consolidated with No. 20-50115 conviction for being found unlawfully in the United States following removal and the revocation of his supervised release. He argues that the recidivism enhancement under 8 U.S.C. § 1326(b) is unconstitutional because it allows 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. Lopez-Sanchez correctly concedes that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he raises the issue to preserve it for further possible review. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007). The Government has filed an unopposed motion for summary affirmance based on Almendarez-Torres and, alternatively, seeks an extension of time to file a brief. Because Lopez-Sanchez’s sole issue on appeal is foreclosed, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Lopez-Sanchez has abandoned a challenge to the revocation of his supervised release by failing to brief an argument as to the revocation. See United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010). The Government’s motion for summary affirmance is GRANTED, the Government’s alternative motion for an extension of time to file a brief is DENIED, and the judgments of the district court are AFFIRMED. 2
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