Case: 21-50558 Document: 00516069504 Page: 1 Date Filed: 10/26/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 21-50558 October 26, 2021
consolidated with
Lyle W. Cayce
No. 21-50568
Clerk
Summary Calendar
United States of America,
Plaintiff—Appellee,
versus
Ramon Diaz-Quintana,
Defendant—Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:21-CR-23-1
USDC No. 4:15-CR-233-1
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
*
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opinion should not be published and is not precedent except under the limited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: 21-50558 Document: 00516069504 Page: 2 Date Filed: 10/26/2021
No. 21-50558 c/w No. 21-50568
Ramon Diaz-Quintana appeals his conviction and sentence under
8 U.S.C. §§ 1326(a) and (b)(2), 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, Diaz-Quintana contends that it violates
the Constitution to treat a prior conviction that increases the statutory
maximum under § 1326(b)(2) as a sentencing factor, rather than an element
of the offense. He correctly concedes that this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but wishes to
preserve it for further review.
The Government moves without opposition for summary affirmance
or, alternatively, for an extension of time to file its brief. As the Government
asserts and as Diaz-Quintana concedes, the sole issue raised on appeal is
foreclosed by Almendarez-Torres. See United States v. Wallace, 759 F.3d 486,
497 (5th Cir. 2014); United States v. Pineda-Arrellano, 492 F.3d 624, 625–26
(5th Cir. 2007). Thus, because the Government’s position “is clearly right
as a matter of law so that there can be no substantial question as to the
outcome of the case,” summary affirmance is proper. Groendyke Transp., Inc.
v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgments of the district court are AFFIRMED.
The Government’s alternative motion for an extension of time is DENIED
AS MOOT.
2
United States v. Diaz-Quintana
Combined Opinion