Case: 21-50762 Document: 00516181088 Page: 1 Date Filed: 01/26/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals No. 21-50762 Fifth Circuit

Summary Calendar FILED January 26, 2022 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Amado Rodriguez-Navarrete, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-244-1

Before Wiener, Dennis, and Haynes, Circuit Judges.

Per Curiam:* Amado Rodriguez-Navarrete appeals his conviction and sentence for reentry after removal under 8 U.S.C. § 1326(a) and (b)(2). For the first time on appeal, Rodriguez-Navarrete contends that it violates the Constitution to treat a prior conviction that increases the statutory maximum under

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-50762 Document: 00516181088 Page: 2 Date Filed: 01/26/2022

No. 21-50762

§ 1326(b) as a sentencing factor, rather than as 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 Rodriguez-Navarrete concedes, the sole issue raised on appeal is foreclosed by Almendarez-Torres. See, e.g., United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). 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.