Case: 21-50994 Document: 00516239452 Page: 1 Date Filed: 03/15/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 15, 2022
No. 21-50994
Lyle W. Cayce
consolidated with
Clerk
No. 21-51007
Summary Calendar
United States of America,
Plaintiff—Appellee,
versus
Noe Diaz-Diaz,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-447-1
USDC No. 4:21-CR-524-1
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Noe Diaz-Diaz appeals his conviction and sentence for illegal reentry
after deportation, along with the revocation of the term of supervised release
*
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opinion should not be published and is not precedent except under the limited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: 21-50994 Document: 00516239452 Page: 2 Date Filed: 03/15/2022
No. 21-50994
c/w No. 21-51007
he was serving at the time of the offense. He has not briefed the validity of
the revocation of his supervised release or the 12-month revocation sentence
he received and has, therefore, abandoned any challenge to them. See United
States v. Still, 102 F.3d 118, 122 n.7 (5th Cir. 1996).
Diaz-Diaz argues that his sentence of 30 months of imprisonment and
three years of supervised release exceeded the statutory maximum because
the enhanced penalty provisions of 8 U.S.C. § 1326(b) are unconstitutional.
He has filed an unopposed motion for summary disposition and a letter brief
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). Diaz-Diaz states that he has raised the issue only to
preserve it for possible further review. Because summary disposition is
appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.
1969), Diaz-Diaz’s motion is GRANTED, and the district court’s
judgments are AFFIRMED.
2