United States v. Portillo-Rodriguez

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 6, 2022
• Docket: 22-50015
• Status: Unpublished

Opinion

Case: 22-50014 Document: 00516346107 Page: 1 Date Filed: 06/06/2022

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

FILED June 6, 2022 No. 22-50014 Lyle W. Cayce consolidated with Clerk No. 22-50015 Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Edmundo Portillo-Rodriguez,

Defendant—Appellant.

Appeals from the United States District Court for the Western District of Texas USDC No. 4:21-CR-701-1 USDC No. 4:21-CR-893-1

Before King, Costa, and Ho, Circuit Judges. Per Curiam:* Edmundo Portillo-Rodriguez appeals his conviction and sentence for illegal reentry in violation of 8 U.S.C. § 1326(a) and (b), and also appeals the

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 22-50014 Document: 00516346107 Page: 2 Date Filed: 06/06/2022

No. 22-50014 c/w No. 22-50015

judgment revoking his supervised release and imposing an additional term of imprisonment. He has not briefed, and has thus abandoned, any challenge to the revocation of supervised release or to his revocation sentence. See United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010). Portillo-Rodriguez contends for the first time on appeal that § 1326(b) is unconstitutional because it allows for the imposition of 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. He has filed an unopposed motion for summary disposition and a letter brief in which he acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). Portillo-Rodriguez explains that he raises this issue only to preserve it for further review. As Portillo-Rodriguez correctly concedes, the sole claim that he raises on appeal is foreclosed by Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Because summary disposition is proper, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Portillo- Rodriguez’s motion is GRANTED, and the judgments of the district court are AFFIRMED.