USA v. Cardenas-Gomez, No. 22-50881 (5th Cir. 2023)
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Case: 22-50880 Document: 00516657466 Page: 1 Date Filed: 02/27/2023 United States Court of Appeals for the Fifth Circuit ____________ No. 22-50880 Summary Calendar ____________ United States of America, United States Court of Appeals Fifth Circuit FILED February 27, 2023 Lyle W. Cayce Clerk Plaintiff—Appellee, versus Jose Cardenas-Gomez, Defendant—Appellant, consolidated with _____________ No. 22-50881 _____________ United States of America, Plaintiff—Appellee, versus Jose Luis Cardenas-Gomez, Defendant—Appellant. Case: 22-50880 Document: 00516657466 Page: 2 Date Filed: 02/27/2023 No. 22-50880 c/w No. 22-50881 _____________________________ Appeals from the United States District Court for the Western District of Texas USDC Nos. 4:22-CR-180-1, 4:22-CR-240-1 ______________________________ Before Higginbotham, Graves, and Ho, Circuit Judges. Per Curiam: * Jose Cardenas-Gomez appeals his conviction and sentence for illegal reentry after removal under 8 U.S.C. § 1326(a) and (b)(2), as well as the judgment revoking a term of supervised release he was serving for a prior offense. He has not briefed, and has thus abandoned, any challenge to the revocation of supervised release or to his revocation sentence. See United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010). In his sole issue on appeal, Cardenas-Gomez contends that § 1326(b) is unconstitutional because it allows a sentence above the otherwise applicable statutory maximum based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. He has filed an unopposed motion for summary disposition and a letter brief explaining that he has raised this issue only to preserve it for further review and conceding correctly that this 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). Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Cardenas-Gomez’s motion is GRANTED, and the district court’s judgments are AFFIRMED. _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. 2
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