United States v. Jose Castillo-Castillo

Opinion

Case: 19-50621 Document: 00515281455 Page: 1 Date Filed: 01/22/2020

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

United States Court of Appeals

No. 19-50621

Fifth Circuit

FILED

Summary Calendar January 22, 2020 Lyle W. Cayce

UNITED STATES OF AMERICA, Clerk

Plaintiff-Appellee

v.

JOSE ANGEL CASTILLO-CASTILLO,

Defendant-Appellant

Cons. w/No. 19-50634

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE ANGEL CASTILLO-CASTILLO, also known as Jose A. Castillo- Castillo, also known as Jose Angel Castillo, also known as Angel Jose Castillo,

Defendant-Appellant

Appeals from the United States District Court for the Western District of Texas USDC No. 4:16-CR-48-1 USDC No. 4:19-CR-79-1

Case: 19-50621 Document: 00515281455 Page: 2 Date Filed: 01/22/2020

No. 19-50621

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges. PER CURIAM: * Jose Angel Castillo-Castillo appeals his within-guidelines sentence of 46 months of imprisonment and three years of supervised release imposed following his guilty plea conviction for illegal reentry. He also appeals the concomitant revocation of his supervised release related to a prior conviction for illegal reentry. Castillo-Castillo asserts that the enhancement of his sentence pursuant to 8 U.S.C. § 1326(b)(2), which increased the maximum term of imprisonment to 20 years, is unconstitutional because of the treatment of the provision as a sentencing factor rather than as an element of the offense that must be alleged in the indictment and proved to a jury beyond a reasonable doubt.

As he concedes, this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998). See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Rojas-Luna, 522 F.3d 502, 505-06 (5th Cir. 2008). Thus, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Castillo-Castillo has not raised any argument with respect to his revocation proceedings. Any such claim is thus deemed abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

Accordingly, 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 judgment of the district court is AFFIRMED.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.