United States v. Rivera-Suarez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-51125
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FRANCISCO JAVIAR RIVERA-SUAREZ,

Defendant-Appellant

Cons. w/No. 19-51132

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FRANCISCO RIVERA-SUAREZ,

Defendant-Appellant

Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-504-1
USDC No. 4:19-CR-135-1

United States Court of Appeals
Fifth Circuit
FILED
July 31, 2020

Lyle W. Cayce
Clerk
Case: 19-51125 Document: 00515511706 Page: 1 Date Filed: 07/31/2020

No. 19-51125
c/w No. 19-51132

2
Before HAYNES, WILLETT, and HO, Circuit Judges.
PER CURIAM:
*

Francisco Javiar Rivera-Suarez appeals his conviction for illegal reentry
into the United States and the revocation of his supervised release. He argues
that the sentence enhancement provision of 8 U.S.C. § 1326(b) is
unconstitutional because Apprendi v. New Jersey, 530 U.S. 466 (2000), held
that facts that increase a maximum sentence must be proved to 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 wishes to preserve it for
further review. The Government has filed an unopposed motion for summary
affirmance, agreeing that the issue is foreclosed by Almendarez-Torres.
Alternately, the Government requests an extension of time to file its brief.
In Almendarez-Torres, 523 U.S. at 226-27, the Supreme Court held that
convictions used to enhance a sentence under § 1326(b) need not be recited in
the indictment. Following Almendarez-Torres, the Apprendi Court held that
facts used to increase a sentence beyond the statutory maximum must be
proved to a jury, except for the fact of a prior conviction. See 530 U.S. at 490.
Apprendi and subsequent Supreme Court cases did not overrule Almendarez-
Torres, which remains binding precedent. See United States v. Wallace, 759
F.3d 486, 497 (5th Cir. 2014); United States v. Garza-Lopez, 410 F.3d 268, 276
(5th Cir. 2005). Accordingly, Rivera-Suarez’s sole appellate argument is
foreclosed by Almendarez-Torres. Rivera-Suarez has abandoned any challenge
to the revocation of his supervised release by failing to brief it. See United
States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010).

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
Case: 19-51125 Document: 00515511706 Page: 2 Date Filed: 07/31/2020

No. 19-51125
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3
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,”
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), 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 judgment of the district court is AFFIRMED.
Case: 19-51125 Document: 00515511706 Page: 3 Date Filed: 07/31/2020