Case: 21-50194 Document: 00515985395 Page: 1 Date Filed: 08/19/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 19, 2021 No. 21-50194 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Jose Heliodoro Moreno-Herrera, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:20-CR-437-1

Before Wiener, Dennis, and Haynes, Circuit Judges.

Per Curiam:* Appealing the judgment in a criminal case, Jose Heliodoro Moreno- Herrera challenges his sentence of 16 months of imprisonment and three years of supervised release for illegal reentry. As the sole issue on appeal, he argues that the enhancement of his maximum sentence (which permitted the

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-50194 Document: 00515985395 Page: 2 Date Filed: 08/19/2021

No. 21-50194

higher term of supervised release he received) pursuant to 8 U.S.C. § 1326(b)(2) is unconstitutional because the enhancement is based on facts neither alleged in his indictment nor proven to a jury beyond a reasonable doubt. The Government has filed an unopposed motion for summary affirmance arguing that the issue is foreclosed and, in the alternative, a motion for an extension of time to file a brief.

As the Government argues, and Moreno-Herrera concedes, this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998). See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Rojas-Luna, 522 F.3d 502, 505-06 (5th Cir. 2008). Thus, 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, the Government’s alternative motion for an extension of time to file a brief is DENIED, and the judgment of the district court is AFFIRMED.