Case: 20-50109      Document: 00515540517        Page: 1     Date Filed: 08/25/2020




            United States Court of Appeals
                 for the Fifth Circuit                           United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                                                  August 25, 2020
                               No. 20-50109
                                                                   Lyle W. Cayce
                           consolidated with
                                                                        Clerk
                               No. 20-50115
                             Summary Calendar


 United States of America,

                                                           Plaintiff—Appellee,

                                     versus

 Marco Antonio Lopez-Sanchez,

                                                       Defendant—Appellant.


                 Appeals from the United States District Court
                      for the Western District of Texas
                           USDC No. 4:19-CR-619-1
                           USDC No. 4:17-CR-157-1


 Before Haynes, Willett, and Ho, Circuit Judges.
 Per Curiam:*
        Marco Antonio Lopez-Sanchez appeals the 21-month prison sentence
 and three-year term of supervised release imposed following his guilty plea


        *
          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 opinion should not be published and is not precedent except under the limited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.
Case: 20-50109      Document: 00515540517           Page: 2    Date Filed: 08/25/2020



                                 No. 20-50109
                              consolidated with
                                 No. 20-50115

 conviction for being found unlawfully in the United States following removal
 and the revocation of his supervised release. He argues that the recidivism
 enhancement under 8 U.S.C. § 1326(b) is unconstitutional because it allows
 a sentence above the otherwise applicable statutory maximum based on facts
 that are neither alleged in the indictment nor found by a jury beyond a
 reasonable doubt. Lopez-Sanchez correctly 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 further possible 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 based on Almendarez-Torres and,
 alternatively, seeks an extension of time to file a brief.
        Because Lopez-Sanchez’s sole issue on appeal is foreclosed, summary
 affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d
 1158, 1162 (5th Cir. 1969). Lopez-Sanchez has abandoned a 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).
        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, and the judgments of the district court are AFFIRMED.




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