### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 19

- 51125 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. FRANCISCO JAVIAR RIVERA

- SUAREZ , Defendant

- Appellant
Cons. w/No. 19

- 51132 UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. FRANCISCO RIVERA

- SUAREZ , Defendant

- Appellant

Appeal s from the United States District Court for the Western District of Texas USDC No. 4:19

- CR

- 504

- 1 USDC No. 4:19

- CR

- 135

- 1 United States Court of Appeals Fifth Circuit 

### FILED July 31, 2020 Lyle W. Cayce Clerk Case: 19-51125 Document: 00515511706 Page: 1 Date Filed: 07/31/2020No. 19

- 51125 c/w No. 19

- 51132

2 Before HAYNES, WILLETT, and HO, Circuit Judges

. PER CURIAM: * Francisco Javiar Rivera

- Suarez appeals his conviction for illegal reentry into the United States and the revocation of his supervised release. He argues that the sentence enhancement provision of 8 U.S.C. § 1326(b) is unconstitutional because Apprendi v. New Jersey , 530 U.S. 466 (2000 ), held that facts that increase a maximum sentence must be proved to a jury beyond a reasonable doubt

. He concedes that the issue is foreclosed by Almendarez

Torres v. United States , 523 U.S. 224 (1998) , but he wishes to preserve it for further review. The Government has filed an unopposed motion for summary affirmance, agreeing that the issue is foreclosed by Almendarez

- Torres

. Alternately, the Government requests an extension of time to file its brief. In Almendarez

- Torres , 523 U.S. at 226

- 27, the Su preme Court held that convictions used to enhance a sentence under § 1326(b) need not be recited in the indictment. Following Almendarez

- Torres , the Apprendi Court held that facts used to increase a sentence beyond the statutory maximum must be proved to a jury, except for the fact of a prior conviction. See 530 U.S. at 490. Apprendi and subsequent Supreme Court cases did not overrule Almendarez

Torres , which remains binding precedent. See United States v. Wallace , 759 F.3d 486, 497 (5th Cir. 2014); United States v. Garza

- Lopez , 410 F.3d 268, 276 (5th Cir. 2005). Accordingly, Rivera

- Suarez’s sole appellate argument is foreclosed by Almendarez

- Torres. Rivera

- Suarez has abandoned any challenge to the revocation of his supervised release by failing to brief it. See United States v. Reagan , 596 F.3d 251, 254

- 55 (5th Cir. 2010).

* Pursuant to 5 TH C IR

. 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 5 TH C IR

. R. 47.5.4. Case: 19-51125 Document: 00515511706 Page: 2 Date Filed: 07/31/2020No. 19

- 51125 c/w No. 19

- 51132

3 Because the Government’s position “is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case,” Groendyke Transp., Inc. v. Da vis , 406 F.2d 1158, 1162 (5th Cir. 1969), 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 as moot , and the judgment of the district court is AFFIRMED. Case: 19-51125 Document: 00515511706 Page: 3 Date Filed: 07/31/2020