USA v. Pulido-Mendez, No. 21-50521 (5th Cir. 2021)
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Case: 21-50520 Document: 00516106273 Page: 1 Date Filed: 11/23/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED November 23, 2021 No. 21-50520 consolidated with No. 21-50521 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Jose Arnulfo Pulido-Mendez, Defendant—Appellant. Appeals from the United States District Court for the for the Western District of Texas No. 4:19-CR-221-1 No. 4:21-CR-47-1 Before Smith, Stewart, and Graves, Circuit Judges. Per Curiam:* In 2021, Jose Pulido-Mendez pleaded guilty of illegal reentry in viola- * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-50520 Document: 00516106273 Page: 2 Date Filed: 11/23/2021 No. 21-50520 c/w No. 21-50521 tion of 8 U.S.C. § 1326 and was sentenced to 21 months of imprisonment and a three-year term of supervised release (“SR”). At the time of the offense, Pulido-Mendez was serving a three-year term of SR resulting from a 2019 illegal-reentry conviction. Based on the new illegal-reentry offense, the district court revoked Pulido-Mendez’s prior term of SR and sentenced him to 14 months of imprisonment, to be served consecutively to the 21-month term. In this consolidated appeal of both judgments, Pulido-Mendez challenges only the sentence he received following his guilty plea conviction on the new illegal-reentry offense. He makes no argument challenging the revocation of his SR or the sentence imposed upon revocation. He has thus abandoned any such challenge by failing to brief it. See Yohey v. Collins, 985 F.2d 222, 224−25 (5th Cir. 1993). With respect to his new illegal-reentry sentence, Pulido-Mendez asserts, for the first time, that the sentencing enhancement in 8 U.S.C. § 1326(b) is unconstitutional because it increases the statutory maximum sentence based on the fact of a prior felony conviction neither alleged in the indictment nor found by a jury beyond a reasonable doubt. He contends that, if the § 1326(b) enhancement is unconstitutional, he is subject to no more than two years of imprisonment under § 1326(a) and, thus, one year or less of SR. See 18 U.S.C. §§ 3559(a)(5), 3583(b)(3). Pulido-Mendez concedes that his challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve the issue for further review. Agreeing that the issue is foreclosed, the government has moved for summary affirmance or, in the alternative, for an extension of time to file a brief. As the government maintains and Pulido-Mendez concedes, the sole issue raised on appeal is foreclosed by Almendarez-Torres, id. at 239−47. See 2 Case: 21-50520 Document: 00516106273 Page: 3 Date Filed: 11/23/2021 No. 21-50520 c/w No. 21-50521 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). Because the issue is foreclosed, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, the motion for summary affirmance is GRANTED, and the judgments are AFFIRMED. The government’s alternative motion for an extension of time to file a brief is DENIED. 3
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