Case: 20-50779 Document: 00515905910 Page: 1 Date Filed: 06/18/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
No. 20-50779 Fifth Circuit
consolidated with FILED
No. 20-50781 June 18, 2021
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Rafael Lopez-Jimenez,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
No. 4:20-CR-234-1
No. 4:18-CR-647-1
Before King, Smith, and Haynes, Circuit Judges.
Per Curiam:*
Rafael Lopez-Jimenez appeals the within-guidelines sentence and
supervised release imposed following his guilty-plea conviction of illegal
*
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opinion should not be published and is not precedent except under the limited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: 20-50779 Document: 00515905910 Page: 2 Date Filed: 06/18/2021
No. 20-50779
No. 20-50781
reentry after removal. He also appeals the concomitant revocation of his
supervised release related to his illegal-reentry conviction.
Lopez-Jimenez contends that 8 U.S.C. § 1326(b)(1) is unconstitu-
tional because it increases the statutory maximum sentence based on the fact
of a prior felony conviction 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 pre-
serve the issue for further review. The government has filed an unopposed
motion for summary affirmance, agreeing that the issue is foreclosed and, in
the alternative, a motion for an extension of time to file its brief.
As the government maintains, and Lopez-Jimenez concedes, the sole
issue on appeal is foreclosed by Almendarez-Torres. See United States v. Wal-
lace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda-Arrellano,
492 F.3d 624, 625−26 (5th Cir. 2007). Because the issue is foreclosed, sum-
mary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969).
Although the appeals of Lopez-Jimenez’s illegal-reentry conviction
and supervised-release revocation were consolidated, he does not address the
revocation in his appellate brief. Consequently, he has abandoned any chal-
lenge to the revocation or revocation sentence. See Yohey v. Collins, 985 F.2d
222, 224−25 (5th Cir. 1993).
Accordingly, the motion for summary affirmance is GRANTED, and
the judgments are AFFIRMED. The government’s motion for an exten-
sion is DENIED.
2