United States v. Hidrogo-Marin

Case: 21-50203   Document: 00516018965   Page: 1   Date Filed: 09/17/2021




          United States Court of Appeals
               for the Fifth Circuit                      United States Court of Appeals
                                                                   Fifth Circuit

                                                                 FILED
                                                         September 17, 2021
                            No. 21-50203
                                                            Lyle W. Cayce
                          Summary Calendar                       Clerk


   United States of America,

                                                   Plaintiff—Appellee,

                                versus

   Cesar Hidrogo,

                                               Defendant—Appellant,


                        consolidated with
                          _____________

                            No. 21-50209
                          _____________

   United States of America,

                                                   Plaintiff—Appellee,

                                versus

   Cesar Hidrogo-Marin,

                                               Defendant—Appellant.
Case: 21-50203     Document: 00516018965         Page: 2     Date Filed: 09/17/2021

                                    No. 21-50203
                                 c/w & No. 21-50209




                  Appeals from the United States District Court
                       for the Western District of Texas
                           USDC No. 4:20-CR-489-1
                           USDC No. 4:20-CR-474-1


   Before Higginbotham, Higginson, and Duncan, Circuit Judges.
   Per Curiam:*
          Cesar Hidrogo pleaded guilty of illegal entry after deportation in case
   number 4:20-CR-474-1, and he was sentenced to a 30-month term of
   imprisonment and to a three-year period of supervised release. Hidrogo’s
   supervised release in case number 4:20-CR-489-1 was revoked, and he was
   sentenced to a 12-month term of imprisonment, to be served consecutively
   to the term of imprisonment in 4:20-CR-474-1. Timely notices of appeal
   were filed in both cases, and the appeals have been consolidated.
          Hidrogo asserts that the enhancement of his sentence based on his
   prior conviction pursuant to 8 U.S.C. § 1326(b)(2) is unconstitutional
   because it was based on facts neither alleged in the indictment nor found by
   a jury beyond a reasonable doubt. He concedes that 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 moves for summary
   affirmance, asserting that Hidrogo’s argument is foreclosed.
          The parties are correct that Hidrogo’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).



          *
            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.




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Case: 21-50203      Document: 00516018965       Page: 3   Date Filed: 09/17/2021




                                   No. 21-50203
                                c/w & No. 21-50209

   Thus, summary affirmance is proper. See Groendyke Transp., Inc. v. Davis,
   406 F.2d 1158, 1162 (5th Cir. 1969).
          Hidrogo raises no issue with respect to the revocation of his
   supervised release. Consequently, he has abandoned any challenge to the
   revocation or revocation sentence. See Yohey v. Collins, 985 F.2d 222, 224-
   25 (5th Cir. 1993).
          Accordingly, the Government’s motion for summary affirmance is
   GRANTED, the Government’s alternative motion for an extension of time
   to file a brief is DENIED as moot, and the judgments of the district court
   are AFFIRMED.




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