United States v. Lopez-Sanchez

United States Court of Appeals
for the Fifth Circuit

No. 20-50109
consolidated with
No. 20-50115
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Marco Antonio Lopez-Sanchez,

Defendant—Appellant.

Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-619-1
USDC No. 4:17-CR-157-1

Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
Marco Antonio Lopez-Sanchez appeals the 21-month prison sentence
and three-year term of supervised release imposed following his guilty plea

*
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opinion should not be published and is not precedent except under the limited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.
United States Court of Appeals
Fifth Circuit
FILED
August 25, 2020

Lyle W. Cayce
Clerk
Case: 20-50109 Document: 00515540517 Page: 1 Date Filed: 08/25/2020

No. 20-50109
consolidated with
No. 20-50115
2
conviction for being found unlawfully in the United States following removal
and the revocation of his supervised release. He argues that the recidivism
enhancement under 8 U.S.C. § 1326(b) is unconstitutional because it allows
a sentence above the otherwise applicable statutory maximum based on facts
that are neither alleged in the indictment nor found by a jury beyond a
reasonable doubt. Lopez-Sanchez correctly concedes that his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he
raises the issue to preserve it for further possible review. 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). The Government has filed an
unopposed motion for summary affirmance based on Almendarez-Torres and,
alternatively, seeks an extension of time to file a brief.
Because Lopez-Sanchez’s sole issue on appeal is foreclosed, summary
affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d
1158, 1162 (5th Cir. 1969). Lopez-Sanchez 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).
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, and the judgments of the district court are AFFIRMED.

Case: 20-50109 Document: 00515540517 Page: 2 Date Filed: 08/25/2020