USA v. Cruz-Miguel, No. 20-50711 (5th Cir. 2021)
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Case: 20-50711 Document: 00515752088 Page: 1 Date Filed: 02/22/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED February 22, 2021 No. 20-50711 consolidated with No. 20-50714 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Domingo Cruz-Miguel, Defendant—Appellant. Appeals from the United States District Court for the Western District of Texas USDC No. 4:19-CR-814-1 USDC No. 4:20-CR-56-1 Before Clement, Higginson, and Engelhardt, 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 Per Curiam:* * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 20-50711 Document: 00515752088 Page: 2 Date Filed: 02/22/2021 No. 20-50711 c/w No. 20-50714 Domingo Cruz-Miguel appeals his sentence of 87 months in prison, which the district court imposed following his guilty plea conviction for illegal reentry in violation of 8 U.S.C. § 1326. He also appeals from the judgment revoking his supervised release, which had been imposed after a prior illegal reentry conviction. Cruz-Miguel contends that the recidivism enhancement under § 1326(b)(2), which was applied in his case, is unconstitutional because it allows a sentence above the otherwise applicable statutory maximum of two years of imprisonment, see § 1326(a), based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. He concedes the issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve the issue for further review. The Government has filed an unopposed motion for summary affirmance, asserting that Cruz-Miguel’s argument is foreclosed. The parties are correct that Cruz-Miguel’s assertion is foreclosed by Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Rojas-Luna, 522 F.3d 502, 505-06 (5th Cir. 2008). Further, Cruz-Miguel has abandoned any challenge to the revocation of his supervised release by failing to brief an argument as to the revocation. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Accordingly, the motion for summary affirmance is GRANTED, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the Government’s 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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