     Case: 19-51125    Document: 00515511706   Page: 1   Date Filed: 07/31/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                               No. 19-51125                              FILED
                             Summary Calendar                        July 31, 2020
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

FRANCISCO JAVIAR RIVERA-SUAREZ,

                                         Defendant-Appellant

Cons. w/No. 19-51132

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee

v.

FRANCISCO RIVERA-SUAREZ,

                                         Defendant-Appellant



                Appeals from the United States District Court
                      for the Western District of Texas
                          USDC No. 4:19-CR-504-1
                          USDC No. 4:19-CR-135-1
     Case: 19-51125      Document: 00515511706         Page: 2    Date Filed: 07/31/2020


                                     No. 19-51125
                                   c/w No. 19-51132

Before HAYNES, WILLETT, and HO, Circuit Judges.
PER CURIAM: *
       Francisco Javiar Rivera-Suarez appeals his conviction for illegal reentry
into the United States and the revocation of his supervised release. He argues
that the sentence enhancement provision of 8 U.S.C. § 1326(b) is
unconstitutional because Apprendi v. New Jersey, 530 U.S. 466 (2000), held
that facts that increase a maximum sentence must be proved to 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 wishes to preserve it for
further review. The Government has filed an unopposed motion for summary
affirmance, agreeing that the issue is foreclosed by Almendarez-Torres.
Alternately, the Government requests an extension of time to file its brief.
       In Almendarez-Torres, 523 U.S. at 226-27, the Supreme Court held that
convictions used to enhance a sentence under § 1326(b) need not be recited in
the indictment. Following Almendarez-Torres, the Apprendi Court held that
facts used to increase a sentence beyond the statutory maximum must be
proved to a jury, except for the fact of a prior conviction. See 530 U.S. at 490.
Apprendi and subsequent Supreme Court cases did not overrule Almendarez-
Torres, which remains binding precedent. See United States v. Wallace, 759
F.3d 486, 497 (5th Cir. 2014); United States v. Garza-Lopez, 410 F.3d 268, 276
(5th Cir. 2005).      Accordingly, Rivera-Suarez’s sole appellate argument is
foreclosed by Almendarez-Torres. Rivera-Suarez has abandoned any challenge
to the revocation of his supervised release by failing to brief it. See United
States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010).


       * Pursuant to 5TH CIR. R. 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
CIR. R. 47.5.4.



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    Case: 19-51125   Document: 00515511706    Page: 3   Date Filed: 07/31/2020


                                 No. 19-51125
                               c/w No. 19-51132

     Because the Government’s position “is clearly right as a matter of law so
that there can be no substantial question as to the outcome of the case,”
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), 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 as moot, and the judgment of the district court is AFFIRMED.




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