USA v. Vasquez-Santana, No. 22-50459 (5th Cir. 2023)

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Case: 22-50459 Document: 00516655763 Page: 1 Date Filed: 02/24/2023 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit _____________ FILED February 24, 2023 No. 22-50459 consolidated with No. 22-50460 Summary Calendar _____________ Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Alejandro Vasquez-Santana, Defendant—Appellant. ______________________________ Appeals from the United States District Court for the Western District of Texas USDC Nos. 4:22-CR-34-1, 7:16-CR-298-1 ______________________________ Before Jones, Haynes, and Oldham, 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Curiam: * _____________________ * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 22-50459 Document: 00516655763 Page: 2 Date Filed: 02/24/2023 Alejandro Vasquez-Santana appeals his sentence for illegal reentry into the United States under 8 U.S.C. § 1326(a) and (b)(2), as well as the judgment revoking his term of supervised release for committing the new offense. He has not briefed, and has therefore abandoned, any challenge to the revocation judgment imposed in the consolidated case. See United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010). Vasquez-Santana argues that the recidivism enhancement in § 1326(b) is unconstitutional because it permits a sentence above the applicable maximum in § 1326(a), based on facts neither alleged in the indictment nor found by a jury beyond a reasonable doubt. His three-year term of supervised release also exceeds the maximum in § 1326(a). VasquezSantana acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he nevertheless seeks to preserve it for possible Supreme Court review. Accordingly, Vasquez-Santana has filed an unopposed motion for summary disposition. We have held that 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). As Vasquez-Santana concedes that his argument is foreclosed, summary disposition is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Vasquez-Santana’s motion is GRANTED, and the district court’s judgments are AFFIRMED.

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