Case: 21-50361 Document: 00516110609 Page: 1 Date Filed: 11/30/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED November 30, 2021 No. 21-50361 Lyle W. Cayce Summary Calendar Clerk

United States of America, Plaintiff—Appellee, versus Jorge Alberto Funez-Zapata, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 2:20-CR-1587-1

Before Southwick, Oldham, and Wilson, Circuit Judges.

Per Curiam:* Jorge Alberto Funez-Zapata appeals his conviction and sentence under 8 U.S.C. § 1326(a) and (b)(2). For the first time on appeal, Funez- Zapata contends that it violates the Constitution to treat a prior conviction that increases the statutory maximum under § 1326(b)(2) as a sentencing

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-50361 Document: 00516110609 Page: 2 Date Filed: 11/30/2021

No. 21-50361

factor rather than an element of the offense. He correctly concedes that the argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he wishes to preserve it for further review. The Government has moved without opposition for summary affirmance or, alternatively, for an extension of time to file its brief.

As the Government asserts and as Funez-Zapata concedes, the sole issue raised on appeal 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). Because the Government’s position “is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case,” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), summary affirmance is proper.

Accordingly, the motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. The Government’s alternative motion for an extension of time is DENIED as unnecessary.