Case: 21-50434 Document: 00516128140 Page: 1 Date Filed: 12/13/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-50434 December 13, 2021
consolidated with Lyle W. Cayce
No. 21-50435 Clerk
Summary Calendar
United States of America,
Plaintiff—Appellee,
versus
Andres Pascual-Mendez,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:18-CR-317-1
USDC No. 4:20-CR-562-1
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Andres Pascual-Mendez appeals his conviction and sentence under 8
U.S.C. § 1326(a) and (b)(2), along with the revocation of the term of
*
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opinion should not be published and is not precedent except under the limited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: 21-50434 Document: 00516128140 Page: 2 Date Filed: 12/13/2021
No. 21-50434
c/w No. 21-50435
supervised release he was serving at the time of the offense. Because his
appellate brief does not address the validity of the revocation or the
revocation sentence, he abandons any challenge to that judgment. See Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
For the first time on appeal, Pascual-Mendez contends that it violates
the Constitution to treat a prior conviction that increases the statutory
maximum under § 1326(b)(2) as a sentencing factor, rather than an element
of the offense. He correctly concedes that the argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he wishes to
preserve it for further review. The Government has moved without
opposition for summary affirmance or, alternatively, for an extension of time
to file its brief.
As the Government asserts and as Pascual-Mendez concedes, the sole
issue raised on appeal is foreclosed by Almendarez-Torres. See United States
v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda-
Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007). Because the Government’s
position “is clearly right as a matter of law so that there can be no substantial
question as to the outcome of the case,” Groendyke Transp., Inc. v. Davis, 406
F.2d 1158, 1162 (5th Cir. 1969), summary affirmance is proper.
Accordingly, the motion for summary affirmance is GRANTED, and
the judgments of the district court are AFFIRMED. The Government’s
alternative motion for an extension of time is DENIED.
2