UNITED STATES v. BARRAZA SOTO (2021)

United States Court of Appeals, Fifth Circuit.2021-02-23No. No. 20-50627

Summary · law.co

Holding. The court affirmed the district court's judgment, granting the government's motion for summary affirmance because the defendant's sole appellate argument was foreclosed by binding precedent.

Barraza-Soto was convicted of illegal reentry after removal and received a 24-month sentence. He appealed on the ground that his sentence violated due process because the indictment failed to allege a prior conviction necessary to impose an enhanced penalty under the relevant statute. Both Barraza-Soto and the government acknowledged that his argument was foreclosed by established Supreme Court precedent and therefore could not succeed on appeal. The defendant also did not challenge the revocation of his supervised release in his appellate brief, effectively abandoning that claim.

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

Key issues

Whether an illegal reentry sentence imposed under an enhancement provision violates due process when the indictment omits an allegation of the prior conviction triggering the enhancement
Whether a defendant abandons an appellate claim by failing to address it in the appellate brief

Procedural posture

The defendant appealed his 24-month sentence for illegal reentry and a supervised release revocation following conviction and guilty plea in the district court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

Rosalio Barraza-Soto appeals the 24-month within-guidelines sentence imposed following his guilty plea conviction 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 conviction for illegal reentry.

Raising one issue on appeal, Barraza-Soto argues that his new illegal reentry sentence, imposed under § 1326(b)(1), 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)(1) enhancement. He concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he 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 Barraza-Soto 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 affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Although the appeals of Barraza-Sotos 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 Governments motion for summary affirmance is GRANTED, and the judgments of the district court are AFFIRMED. The Governments alternative motion for an extension of time to file a brief is DENIED as moot.

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.