United States v. Meza-Cruz

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50931
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CARLOS MEZA-CRUZ,

Defendant-Appellant

********************************************************
Consolidated with 19-50941

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CARLOS MEZA-CRUZ, also known as Carlos Meza Cruz, also known as Carlos
Meza-Ruiz, also known as Jesus Meza, also known as Carlos Mesa-Cruz, also
known as Carlos Cruz Mesa,

Defendant-Appellant

Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-527-1
USDC No. 4:19-CR-263-1

United States Court of Appeals
Fifth Circuit
FILED
May 19, 2020

Lyle W. Cayce
Clerk
Case: 19-50931 Document: 00515422126 Page: 1 Date Filed: 05/19/2020

No. 19-50931
c/w No. 19-50941
2
Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM:
*

Carlos Meza-Cruz appeals his 70-month within-guidelines sentence
imposed following his guilty plea for illegal reentry after removal from the
United States, in violation of 8 U.S.C. § 1326. He also appeals the concomitant
revocation of his supervised release related to his prior convictions for
conspiracy to possess with intent to distribute marijuana, in violation of 21
U.S.C. §§ 846 and 841(b)(1)(D), possession with intent to distribute marijuana,
in violation of § 841(b)(1)(D), and illegal reentry of a removed alien, in violation
of § 1326.
Raising one issue on appeal, Meza-Cruz argues that his new illegal
reentry sentence, imposed under § 1326(b)(2), violates his due process rights
by exceeding the two-year statutory maximum set forth in § 1326(a) because
the indictment did not allege a prior conviction necessary for the § 1326(b)(2)
enhancement. He concedes that this argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224, 226-27 (1998), but seeks to preserve the
issue for further review. The Government 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 a brief.
As the Government argues, and Meza-Cruz 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). Because the issue is foreclosed, summary

*
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: 19-50931 Document: 00515422126 Page: 2 Date Filed: 05/19/2020

No. 19-50931
c/w No. 19-50941
3
affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d
1158, 1162 (5th Cir. 1969).
Although the appeals of Meza-Cruz’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
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, and the judgments of the district court are AFFIRMED. The
Government’s alternative motion for an extension of time to file a brief is
DENIED.

Case: 19-50931 Document: 00515422126 Page: 3 Date Filed: 05/19/2020