USA v. Mendoza-Nandho, No. 22-50389 (5th Cir. 2022)
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Case: 22-50387 Document: 00516581113 Page: 1 Date Filed: 12/16/2022 United States Court of Appeals for the Fifth Circuit No. 22-50387 Summary Calendar United States of America, United States Court of Appeals Fifth Circuit FILED December 16, 2022 Lyle W. Cayce Clerk Plaintiff—Appellee, versus Juan Mendoza-Nando, Defendant—Appellant, consolidated with _____________ No. 22-50389 _____________ United States of America, Plaintiff—Appellee, versus Juan Mendoza-Nandho, Defendant—Appellant. Case: 22-50387 Document: 00516581113 Page: 2 Date Filed: 12/16/2022 No. 22-50387 c/w No. 22-50389 Appeals from the United States District Court for the Western District of Texas USDC Nos. 4:21-CR-1078-1, 4:18-CR-102-1 Before Davis, Duncan, and Engelhardt, Circuit Judges. Per Curiam:* Juan Mendoza-Nando appeals both his conviction and sentence for illegal reentry after removal and the revocation of a term of supervised release and sentence imposed for his previous conviction for transporting illegal aliens for financial gain. However, he has abandoned any challenge to the validity of the revocation or the revocation sentence by failing to brief it. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993). For the first time on appeal, Mendoza-Nando argues that his sentence for the illegal reentry offense 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. He has filed a motion for summary affirmance, acknowledging that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and seeking to preserve it for possible Supreme Court review. 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, Mendoza-Nando is correct that his argument is * This opinion is not designated for publication. See 5th Cir. R. 47.5. 2 Case: 22-50387 Document: 00516581113 Page: 3 Date Filed: 12/16/2022 No. 22-50387 c/w No. 22-50389 foreclosed, and 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 judgment of the district court is AFFIRMED. 3
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