UNITED STATES v. LOPEZ ORDONEZ (2021)

United States Court of Appeals, Fifth Circuit.2021-08-31No. No. 20-51045

Summary · law.co

Holding. The appellate court affirmed the district court's judgments, granting the government's motion for summary affirmance because the defendant's constitutional challenge to the sentencing enhancement was foreclosed by existing precedent and because the defendant abandoned his supervised release revocation challenge by failing to brief it.

Ervin Anibar Lopez-Ordonez appealed his 21-month prison sentence and three-year supervised release term imposed after he pleaded guilty to illegal entry after removal. He also challenged the revocation of his supervised release. Lopez-Ordonez contended that a sentencing enhancement based on his prior conviction violated the Constitution because prior convictions should be treated as offense elements requiring jury findings rather than sentencing factors that increase statutory maximums.

The appellate court rejected Lopez-Ordonez's constitutional argument, finding it foreclosed by established precedent holding that prior convictions may properly function as sentencing factors under the relevant statute. Additionally, Lopez-Ordonez forfeited his challenge to the supervised release revocation by failing to present arguments about it in his appellate brief.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a prior conviction may serve as a sentencing factor that increases statutory maximum penalties without being an element of the offense
Constitutional permissibility of sentencing enhancements based on prior convictions under § 1326(b)(1)
Forfeiture of appellate arguments through failure to brief them

Procedural posture

The defendant appealed his conviction sentence and supervised release revocation from the district court to the Court of Appeals.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

Ervin Anibar Lopez-Ordonez appeals his sentence of 21 months of imprisonment and three years of supervised release, which the district court imposed following his guilty plea conviction for illegal entry after removal under 8 U.S.C. § 1326. He also appeals from the judgment revoking his supervised release. Lopez-Ordonez argues that the enhancement of his new sentence under § 1326(b)(1) was based on his prior conviction and increased the statutory maximum terms of imprisonment and supervised release. He maintains that the enhancement is unconstitutional because his prior conviction is treated as a sentencing factor rather than an element of the offense that must be alleged in the indictment and 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, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he seeks to preserve the issue for further review. The Government moves for summary affirmance in each of these consolidated appeals, asserting that Lopez-Ordonezs argument is foreclosed.

The parties are correct that Lopez-Ordonezs assertion is foreclosed by Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Rojas-Luna, 522 F.3d 502, 505-06 (5th Cir. 2008). Further, Lopez-Ordonez has abandoned any 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). Accordingly, the Governments motions for summary affirmance are GRANTED, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), its alternative motions for an extension of time to file a brief are DENIED, and the judgments of the district court are AFFIRMED.

FOOTNOTES

FOOTNOTE

Per Curiam:*

FN* 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.