Case: 21-50202 Document: 00515984053 Page: 1 Date Filed: 08/18/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 18, 2021 No. 21-50202 Summary Calendar Lyle W. Cayce Clerk

United States of America, Plaintiff—Appellee, versus Sergio Munoz-Cano, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:20-CR-416-1

Before Smith, Stewart, and Graves, Circuit Judges.

Per Curiam:* Sergio Munoz-Cano appeals his sentence to 16 months of imprisonment and three years of supervised release following his guilty plea conviction for entry into the United States after deportation. He contends that the recidivism enhancement in 8 U.S.C. § 1326(b) is unconstitutional

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-50202 Document: 00515984053 Page: 2 Date Filed: 08/18/2021

No. 21-50202

because it permits a sentence above the otherwise-applicable statutory maximum established by § 1326(a) based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. While Munoz- Cano acknowledges this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), he nevertheless seeks to preserve it for possible Supreme Court review. In response, the Government has filed a motion for summary affirmance or, in the alternative, an extension of time to file a brief.

This court has 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. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007). Thus, the parties are correct that Munoz-Cano’s argument is foreclosed, and 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, its alternative motion for an extension of time to file a brief is DENIED, and the judgment of the district court is AFFIRMED.