Case: 21-50567 Document: 00516085146 Page: 1 Date Filed: 11/08/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED November 8, 2021 No. 21-50567 Lyle W. Cayce Summary Calendar Clerk

United States of America, Plaintiff—Appellee, versus Gustavo Guillermo Gutierrez, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 5:20-CR-440-1

Before King, Costa, and Ho, Circuit Judges.

Per Curiam:* Appealing the judgment in a criminal case, Gustavo Guillermo Gutierrez challenges his sentence of 77 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 sentence pursuant to 8 U.S.C.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-50567 Document: 00516085146 Page: 2 Date Filed: 11/08/2021

No. 21-50567

§ 1326(b)(1) is unconstitutional because the enhancement is based on facts neither alleged in his indictment nor proved 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 Gutierrez 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 AS MOOT, and the judgment of the district court is AFFIRMED.