USA v. Chairez-Lopez, No. 22-50267 (5th Cir. 2022)
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Case: 22-50267 Document: 00516572360 Page: 1 Date Filed: 12/09/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit No. 22-50267 consolidated with No. 22-50282 Summary Calendar FILED December 9, 2022 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Juan Chairez-Lopez, Defendant—Appellant. Appeals from the United States District Court for the Western District of Texas USDC No. 4:21-CR-989-1 USDC No. 4:21-CR-1019-1 Before Smith, Dennis, and Southwick, Circuit Judges. Per Curiam:* Juan Chairez-Lopez appeals his conviction and 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: 22-50267 Document: 00516572360 Page: 2 Date Filed: 12/09/2022 No. 22-50267 c/w No. 22-50282 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, Chairez-Lopez 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. In addition, ChairezLopez has filed an unopposed motion for summary affirmance. 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, Chairez-Lopez is correct that his argument is foreclosed, and summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Chairez-Lopez’s motion is GRANTED, and the district court’s judgments are AFFIRMED. 2
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