Case: 22-50138 Document: 00516518792 Page: 1 Date Filed: 10/24/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-50138
consolidated with FILED
No. 22-50143 October 24, 2022
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Diego Hernandez-Herrera,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-890-1
USDC No. 4:21-CR-894-1
Before Jolly, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Diego Hernandez-Herrera appeals his conviction and sentence for
illegal reentry after removal, as well as the judgment revoking his 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opinion should not be published and is not precedent except under the limited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: 22-50138 Document: 00516518792 Page: 2 Date Filed: 10/24/2022
No. 22-50138
c/w No. 22-501423
supervised release for a prior offense. He has not briefed, and has therefore
abandoned, any challenge to the revocation of supervised release or his
revocation sentence. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
For the first time on appeal, Hernandez-Herrera argues that his
sentence exceeds the statutory maximum and is therefore unconstitutional
because the district court enhanced his sentence under 8 U.S.C. § 1326(b)
based on facts that were neither alleged in the indictment nor found by a jury
beyond a reasonable doubt. While he 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, Hernandez-Herrera has filed an unopposed motion for summary
disposition.
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, Hernandez-Herrera 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).
Hernandez-Herrera’s motion is GRANTED, and the district court’s
judgments are AFFIRMED.
2