Case: 20-50753 Document: 00515798998 Page: 1 Date Filed: 03/29/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED March 29, 2021 No. 20-50753 consolidated with Lyle W. Cayce No. 20-50760 Clerk Summary Calendar

United States of America, Plaintiff—Appellee, versus Artemio Cruz-Urias, Defendant—Appellant.

Appeals from the United States District Court for the Western District of Texas USDC No. 4:16-CR-527-1 USDC No. 4:19-CR-922-1

Before King, Smith, and Wilson, Circuit Judges.

Per Curiam:*

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 20-50753 Document: 00515798998 Page: 2 Date Filed: 03/29/2021

No. 20-50753 c/w No. 20-50760

Artemio Cruz-Urias appeals his sentence of thirty months of imprisonment and three years of supervised release, which the district court imposed following his guilty plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326. Cruz-Urias contends that § 1326(b)’s recidivism enhancement is unconstitutional because it allows a sentence above the otherwise applicable statutory maximum of two years of imprisonment and one year of supervised release, see § 1326(a); 18 U.S.C. §§ 3559(a)(5), 3583(b)(3), based on facts that are neither alleged in the indictment nor found by 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 seeks to preserve the issue for further review. The Government moves, unopposed, for summary affirmance, asserting that Cruz-Urias’s argument is foreclosed.

The parties are correct that Cruz-Urias’s assertion is foreclosed by Almendarez-Torres. 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). The motion for summary affirmance is therefore GRANTED.

See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). 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.