USA v. Rubalcaba-Capuchino, No. 22-50719 (5th Cir. 2023)
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Case: 22-50716 Document: 00516656744 Page: 1 Date Filed: 02/27/2023 United States Court of Appeals for the Fifth Circuit _____________ United States Court of Appeals Fifth Circuit No. 22-50716 consolidated with No. 22-50719 Summary Calendar _____________ FILED February 27, 2023 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Juan Oswaldo Rubalcaba-Capuchino, Defendant—Appellant. ______________________________ Appeals from the United States District Court for the Western District of Texas USDC Nos. 4:22-CR-145-1, 4:19-CR-198-1 ______________________________ Before Jones, Haynes and Oldham, Circuit Judges. Per Curiam: * Juan Oswaldo Rubalcaba-Capuchino appeals his conviction and sentence for illegal reentry after removal from the United States, in violation _____________________ * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 22-50716 Document: 00516656744 Page: 2 Date Filed: 02/27/2023 No. 22-50716 c/w No. 22-50719 of 8 U.S.C. § 1326(a) & (b). He also appeals the revocation of his supervised release and the sentence imposed upon revocation. Appellant does not address either the validity of the revocation or the revocation sentence. He has therefore abandoned any challenge to those issues on appeal. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993). With respect to his illegal reentry conviction and sentence, he argues that the application of Section 1326(b)’s enhanced penalty provision is unconstitutional because it permits a defendant to be sentenced above the statutory maximum of Section 1326(a) based on the fact of a prior conviction that was not alleged in the indictment or found by a jury beyond a reasonable doubt. He has filed an unopposed motion for summary disposition and a letter brief conceding that the issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), see United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019), and explaining that he raises the issue to preserve it for Supreme Court review. Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the motion is GRANTED, and the district court’s judgments are AFFIRMED. 2
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