USA v. Valtierra Zuniga, No. 23-50799 (5th Cir. 2024)
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Case: 23-50798 Document: 50-1 Page: 1 Date Filed: 04/01/2024 United States Court of Appeals for the Fifth Circuit _____________ United States Court of Appeals Fifth Circuit No. 23-50798 consolidated with No. 23-50799 Summary Calendar _____________ FILED April 1, 2024 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Francisco Valtierra Zuniga, Defendant—Appellant. ______________________________ Appeals from the United States District Court for the Western District of Texas USDC Nos. 4:23-CR-222-1, 4:23-CR-413-1 ______________________________ Before King, Haynes, and Graves, Circuit Judges. Per Curiam:* Francisco Javier Valtierra Zuniga appeals his sentence for illegal reentry into the United States under 8 U.S.C. § 1326(a) and (b)(2), as well as the revocation of the term of supervised release he was serving at the time of _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 23-50798 Document: 50-1 Page: 2 Date Filed: 04/01/2024 23-50798 c/w No. 23-50799 the offense. Valtierra Zuniga argues that the recidivism enhancement in § 1326(b) is unconstitutional because it permits a sentence above the applicable maximum in § 1326(a), based on facts neither alleged in the indictment nor found by a jury beyond a reasonable doubt. Valtierra Zuniga acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he nevertheless seeks to preserve it for possible Supreme Court review. Accordingly, Valtierra Zuniga has filed an unopposed motion for summary disposition. Because Valtierra Zuniga does not address the revocation or the revocation sentence, he has abandoned any challenge to them. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). We have held that subsequent Supreme Court decisions such as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), did not overrule Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). As Valtierra Zuniga concedes that his argument is foreclosed, summary disposition is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Valtierra Zuniga’s motion is GRANTED, and the district court’s judgment and order revoking supervised release are AFFIRMED. 2
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