United States v. Escalera

Opinion

Case: 22-40669 Document: 00516738879 Page: 1 Date Filed: 05/04/2023

United States Court of Appeals for the Fifth Circuit

____________ United States Court of Appeals Fifth Circuit

No. 22-40669 FILED Summary Calendar May 4, 2023 ____________ Lyle W. Cayce Clerk

United States of America,

Plaintiff—Appellee,

versus

Javier Escalera, Jr.,

Defendant—Appellant.

______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 5:20-CR-1654-1

______________________________

Before Jones, Haynes, and Oldham, Circuit Judges. Per Curiam:* Javier Escalera, Jr., appeals his 60-month prison terms for conspiracy to possess with intent to distribute 100 grams or more of heroin and possession with intent to distribute 100 grams or more of heroin. He challenges the district court’s determination that he was ineligible for the safety valve under 18 U.S.C. § 3553(f) because he has a prior offense that

_____________________

*

This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-40669 Document: 00516738879 Page: 2 Date Filed: 05/04/2023

No. 22-40669

received three criminal history points. Escalera contends that, under § 3553(f)(1), a defendant’s criminal history precludes relief only if he has more than four criminal history points (not counting one-point offenses), a prior three-point offense, and a prior two-point violent offense. However, he concedes that the issue is foreclosed by our holding in United States v. Palomares, 52 F.4th 640, 642, 647 (5th Cir. 2022), petition for cert. filed (U.S. Dec. 21, 2022) (No. 22-340), that a defendant is ineligible for the safety valve if his criminal history satisfies just one of those conditions.

Because the sole issue is foreclosed and “there can be no substantial question as to the outcome of the case,” the Government’s motion for summary affirmance is GRANTED, Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), and the judgment of the district court is AFFIRMED. The Government’s alternative motion for an extension of time to file its appellate brief is DENIED. Escalera’s motion to hold the appeal in abeyance pending the Supreme Court’s decision in Pulsifer v. United States, 39 F.4th 1018 (8th Cir. 2022), cert. granted (U.S. Feb. 27, 2023) (No. 21-1609), is DENIED. See United States v. Lopez-Velasquez, 526 F.3d 804, 808 n.1 (5th Cir. 2008).