UNITED STATES v. REYES GARRIDO (2021)

United States Court of Appeals, Fifth Circuit.2021-01-20No. No. 20-50759

Summary · law.co

Holding. The court affirmed the district court's judgment and the 46-month sentence for illegal reentry, as well as the revocation of supervised release, because the appellant's sole constitutional challenge was foreclosed by Almendarez-Torres v. United States and the appellant abandoned his challenge to the supervised release revocation by failing to address it on appeal.

Marcelo Reyes-Garrido appealed his 46-month sentence for illegal reentry into the United States, challenging the constitutionality of sentencing enhancement provisions under 8 U.S.C. § 1326(b). He acknowledged that his constitutional argument was foreclosed by binding precedent from Almendarez-Torres v. United States and sought only to preserve the issue for potential future review. The government agreed the argument was barred by existing law and filed an unopposed motion for summary affirmance.

The court granted summary affirmance because the sole constitutional issue Reyes-Garrido raised was foreclosed by established precedent. Additionally, because Reyes-Garrido did not address his supervised release revocation in his appellate brief despite consolidating that appeal, the court found he had abandoned any challenge to that revocation. The court denied the government's alternative request for additional time to file a brief.

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Key issues

Constitutional validity of sentencing enhancements under 8 U.S.C. § 1326(b)
Whether foreclosed constitutional arguments warrant resentencing
Effect of failing to address consolidated claims on appeal

Procedural posture

Reyes-Garrido appealed his conviction and sentence for illegal reentry and the revocation of his supervised release following a guilty plea in the district court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

Marcelo Reyes-Garrido appeals the 46-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, Reyes-Garrido argues that he is entitled to resentencing for his new illegal reentry conviction because the sentencing enhancement provisions set forth under § 1326(b) are unconstitutional. He concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 229-35, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), and 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 Reyes-Garrido agrees, 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 Reyes-Garridos 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 he could have raised 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.

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.