United States v. Toribio-Mendoza

United States Court of Appeals
for the Fifth Circuit

No. 20-50387
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Domingo Toribio-Mendoza,

Defendant—Appellant,

consolidated with
_____________

No. 20-50389
_____________

United States of America,

Plaintiff—Appellee,

versus

Domingo Toribio-Mendoza, also known as Domingo Toribio-
Meondoza, also known as Ramon Torbio-Mendoza, also known as
Ramon Mendoza, also known as Domingo Mendoza-Toribio,

Defendant—Appellant.

United States Court of Appeals
Fifth Circuit
FILED
December 17, 2020

Lyle W. Cayce
Clerk
Case: 20-50387 Document: 00515677997 Page: 1 Date Filed: 12/17/2020

No. 20-50387
c/w No. 20-50389
2

Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-162-1
USDC No. 4:19-CR-904-1

Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Domingo Toribio Mendoza appeals his sentence of 16 months in
prison and three years of supervised release, which the district court imposed
following his guilty plea conviction for illegal reentry, in violation of 8 U.S.C.
§ 1326. He also appeals from the judgment revoking his supervised release.
Toribio-Mendoza contends that the recidivism enhancement under
§ 1326(b) is unconstitutional because it allows a sentence above the otherwise
applicable statutory maximum of two years of imprisonment and one year of
supervised release, see § 1326(a); 18 U.S.C.§§ 3559(a)(5), 3583(b)(3), based
on facts that are 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, unopposed, for summary
affirmance, asserting that Toribio-Mendoza’s argument is foreclosed.
The parties are correct that Toribio-Mendoza’s assertion 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). Further, Toribio-Mendoza has abandoned a challenge to the
revocation of his supervised release by failing to brief an argument as to the
revocation. See United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010).

*
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opinion should not be published and is not precedent except under the limited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: 20-50387 Document: 00515677997 Page: 2 Date Filed: 12/17/2020

No. 20-50387
c/w No. 20-50389
3
Accordingly, the motion for summary affirmance is GRANTED, see
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the
Government’s alternative motion for an extension of time to file a brief is
DENIED, and the judgments of the district court are AFFIRMED.

Case: 20-50387 Document: 00515677997 Page: 3 Date Filed: 12/17/2020