Case: 21-50867 Document: 00516226896 Page: 1 Date Filed: 03/07/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
March 7, 2022
No. 21-50867 Lyle W. Cayce
consolidated with Clerk
No. 21-50872
Summary Calendar
United States of America,
Plaintiff—Appellee,
versus
Alejandro Pascual-Miguel,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:17-CR-330-1
USDC No. 4:21-CR-361-1
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Alejandro Pascual-Miguel appeals his conviction and sentence for
illegal reentry into the United States under 8 U.S.C. § 1326(a) and (b)(1),
*
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opinion should not be published and is not precedent except under the limited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: 21-50867 Document: 00516226896 Page: 2 Date Filed: 03/07/2022
No. 21-50867 c/w
No. 21-50872
along with the revocation of the term of 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-Miguel contends that the
recidivism enhancement in § 1326(b) is unconstitutional because it permits a
sentence above the otherwise-applicable statutory maximum established by
§ 1326(a), based on facts that are neither alleged in the indictment nor found
by a jury beyond a reasonable doubt. While Pascual-Miguel acknowledges
this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224 (1998), he nevertheless seeks to preserve it for possible Supreme Court
review. In addition, Pascual-Miguel has filed an unopposed motion for
summary disposition.
This court has held that subsequent Supreme Court decisions such as
Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530
U.S. 466 (2000), did not overrule Almendarez-Torres. See United States v.
Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Thus, Pascual-Miguel is correct
that his argument is foreclosed, and summary disposition is appropriate. See
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Pascual-Miguel’s motion is GRANTED, and the district court’s
judgment is AFFIRMED.
2