USA v. Gonzalez-Pargas, No. 22-50148 (5th Cir. 2023)
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Case: 22-50148 Document: 00516650187 Page: 1 Date Filed: 02/17/2023 United States Court of Appeals for the Fifth Circuit _________________ United States Court of Appeals Fifth Circuit No. 22-50148 consolidated with No. 22-50159 Summary Calendar _________________ FILED February 17, 2023 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Efrain Gonzalez-Pargas, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-959-1 USDC No. 4:21-CR-865-1 ______________________________ Before Stewart, Dennis, and Willett, Circuit Judges. Per Curiam: * Efrain Gonzalez-Pargas appeals his sentence for illegal reentry after removal, as well as the judgment revoking his term of supervised release for committing the new offense. He has not briefed, and has therefore _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-50148 Document: 00516650187 Page: 2 Date Filed: 02/17/2023 No. 22-50148 c/w No. 22-50159 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, Gonzalez-Pargas argues that his sentence exceeds the statutory maximum and is therefore unconstitutional because the district court enhanced his sentence under 8 U.S.C. § 1326(b) based on facts that were neither alleged in the indictment nor found by a jury beyond a reasonable doubt. While he acknowledges this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), he nevertheless seeks to preserve it for possible Supreme Court review. Accordingly, Gonzalez-Pargas has filed an unopposed motion for summary disposition. Subsequent Supreme Court decisions such as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), did not overrule Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Thus, Gonzalez-Pargas is correct that his argument is foreclosed, and summary disposition is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Gonzalez-Pargas’s motion is GRANTED, and the district court’s judgments are AFFIRMED. 2
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