Case: 21-50733 Document: 00516214992 Page: 1 Date Filed: 02/23/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED February 23, 2022 No. 21-50733 Lyle W. Cayce consolidated with Clerk No. 21-50755 Summary Calendar

United States of America, Plaintiff—Appellee, versus Emeterio Mata-Tarango, Defendant—Appellant.

Appeals from the United States District Court for the Western District of Texas USDC No. 4:21-CR-190-1 USDC No. 4:18-CR-850-1

Before Davis, Jones, and Elrod, Circuit Judges.

Per Curiam:* Emeterio Mata-Tarango appeals his conviction and sentence for illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2),

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-50733 Document: 00516214992 Page: 2 Date Filed: 02/23/2022

No. 21-50733 c/w No. 21-50755 along with the revocation of a term of supervised release he was serving at the time of the offense. He has not briefed the validity of the revocation of his supervised release or his revocation sentence and has, therefore, abandoned any challenge to them. See United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010).

For the first time on appeal, Mata-Tarango contends that it violates the Constitution to treat a prior conviction that increases the statutory maximum under § 1326(b) as a sentencing factor, rather than as an element of the offense. He concedes that the issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve it for further review. Agreeing that the issue is foreclosed, the Government moves without opposition for summary affirmance, or, alternatively, for an extension of time to file its brief.

The parties are correct that Mata-Tarango’s assertion is foreclosed by Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Accordingly, the motion for summary affirmance is GRANTED, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the Government’s alternative motion for an extension of time to file a brief is DENIED, and the judgments of the district court are AFFIRMED.