     Case: 20-50110      Document: 00515494087         Page: 1    Date Filed: 07/17/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 20-50110
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 17, 2020
Consolidated with 20-50111
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARTIN DE LA CRUZ-CHAVEZ,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 4:19-CR-728-1
                            USDC No. 4:17-CR-370-1


Before WIENER, SOUTHWICK, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Martin De La Cruz-Chavez appeals the 16-month sentence imposed after
his guilty plea conviction for illegal reentry after deportation. He also appeals
the revocation of his term of supervised release that was imposed in connection
with his prior conviction for transportation of illegal aliens for financial gain.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 20-50110     Document: 00515494087      Page: 2   Date Filed: 07/17/2020


                                  No. 20-50110
                                c/w No. 20-50111


However, De La Cruz-Chavez does not brief any argument as to his revocation
or revocation sentence and, accordingly, has abandoned any related claim. See
United States v. Beaumont, 972 F.2d 553, 563 (5th Cir. 1992).
      De La Cruz-Chavez maintains that the sentence for his illegal-reentry
conviction was imposed under an unconstitutional sentencing provision, i.e., 8
U.S.C. § 1326(b)(2). He suggests that § 1326(b) impermissibly provides that a
defendant’s sentence can be enhanced even if the fact of a prior conviction is
not set forth in the indictment and proved beyond a reasonable doubt. De La
Cruz-Chavez properly 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 possible further 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
and, alternatively, seeks an extension of time to file its brief. Because the issue
is foreclosed, summary affirmance is appropriate. See Groendyke Transp., Inc.
v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
      Thus, 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. The judgments of the district court are AFFIRMED.




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