Case: 20-50711 Document: 00515752088 Page: 1 Date Filed: 02/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 22, 2021
No. 20-50711 Lyle W. Cayce
consolidated with Clerk
No. 20-50714
Summary Calendar
United States of America,
Plaintiff—Appellee,
versus
Domingo Cruz-Miguel,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-814-1
USDC No. 4:20-CR-56-1
Before Clement, Higginson, and Engelhardt, 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opinion should not be published and is not precedent except under the limited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: 20-50711 Document: 00515752088 Page: 2 Date Filed: 02/22/2021
No. 20-50711
c/w No. 20-50714
Domingo Cruz-Miguel appeals his sentence of 87 months in prison,
which the district court imposed following his guilty plea conviction for
illegal reentry in violation of 8 U.S.C. § 1326. He also appeals from the
judgment revoking his supervised release, which had been imposed after a
prior illegal reentry conviction. Cruz-Miguel contends that the recidivism
enhancement under § 1326(b)(2), which was applied in his case, is
unconstitutional because it allows a sentence above the otherwise applicable
statutory maximum of two years of imprisonment, see § 1326(a), based on
facts that are neither alleged in the indictment nor found by a jury beyond a
reasonable doubt. He concedes the issue is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he seeks to preserve the issue for
further review. The Government has filed an unopposed motion for
summary affirmance, asserting that Cruz-Miguel’s argument is foreclosed.
The parties are correct that Cruz-Miguel’s assertion is foreclosed by
Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir.
2014); United States v. Rojas-Luna, 522 F.3d 502, 505-06 (5th Cir. 2008).
Further, Cruz-Miguel has abandoned any challenge to the revocation of his
supervised release by failing to brief an argument as to the revocation. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Accordingly, the
motion for summary affirmance is GRANTED, see Groendyke Transp., Inc.
v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the Government’s motion for
an extension of time to file a brief is DENIED, and the judgments of the
district court are AFFIRMED.
2