Case: 19-51172 Document: 00515486471 Page: 1 Date Filed: 07/13/2020

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-51172 July 13, 2020 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. SALVADOR MORENO CERVANTES, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 3:19-CR-2420-1

Before SMITH, DENNIS, and DUNCAN, Circuit Judges.

PER CURIAM: * Salvador Moreno Cervantes appeals the 37-month, within-guidelines prison term and two-year supervised release term imposed following his guilty plea conviction for illegally reentering the United States after removal.

Moreno Cervantes argues that under the principles articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013), 8 U.S.C. § 1326(b) is unconstitutional because it permits an enhanced

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Case: 19-51172 Document: 00515486471 Page: 2 Date Filed: 07/13/2020

No. 19-51172 penalty based on the fact of a prior felony conviction not alleged in the indictment nor found by a jury beyond a reasonable doubt. The Government has filed an unopposed motion for summary affirmance and, alternatively, seeks an extension of time to file its brief.

As the Government argues and as Moreno Cervantes concedes, this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007). Because the issue is foreclosed, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Accordingly, the Government’s motion for summary affirmance is GRANTED, and the judgment is AFFIRMED. The Government’s alternative motion for an extension of time to file its brief is DENIED.