Case: 21-50203 Document: 00516018965 Page: 1 Date Filed: 09/17/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 17, 2021
No. 21-50203
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Cesar Hidrogo,
Defendant—Appellant,
consolidated with
_____________
No. 21-50209
_____________
United States of America,
Plaintiff—Appellee,
versus
Cesar Hidrogo-Marin,
Defendant—Appellant.
Case: 21-50203 Document: 00516018965 Page: 2 Date Filed: 09/17/2021
No. 21-50203
c/w & No. 21-50209
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-489-1
USDC No. 4:20-CR-474-1
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Cesar Hidrogo pleaded guilty of illegal entry after deportation in case
number 4:20-CR-474-1, and he was sentenced to a 30-month term of
imprisonment and to a three-year period of supervised release. Hidrogo’s
supervised release in case number 4:20-CR-489-1 was revoked, and he was
sentenced to a 12-month term of imprisonment, to be served consecutively
to the term of imprisonment in 4:20-CR-474-1. Timely notices of appeal
were filed in both cases, and the appeals have been consolidated.
Hidrogo asserts that the enhancement of his sentence based on his
prior conviction pursuant to 8 U.S.C. § 1326(b)(2) is unconstitutional
because it was based on facts 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
preserve the issue for further review. The Government moves for summary
affirmance, asserting that Hidrogo’s argument is foreclosed.
The parties are correct that Hidrogo’s assertion is foreclosed by
Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir.
2014); United States v. Rojas-Luna, 522 F.3d 502, 505-06 (5th Cir. 2008).
*
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opinion should not be published and is not precedent except under the limited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.
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Case: 21-50203 Document: 00516018965 Page: 3 Date Filed: 09/17/2021
No. 21-50203
c/w & No. 21-50209
Thus, summary affirmance is proper. See Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969).
Hidrogo raises no issue with respect to the revocation of his
supervised release. Consequently, he has abandoned any challenge to the
revocation or revocation sentence. See Yohey v. Collins, 985 F.2d 222, 224-
25 (5th Cir. 1993).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, the Government’s alternative motion for an extension of time
to file a brief is DENIED as moot, and the judgments of the district court
are AFFIRMED.
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