Case: 21-50860 Document: 00516216063 Page: 1 Date Filed: 02/24/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 21-50860 February 24, 2022 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Hector Cervantes-Resendiz, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-381-1

Before Jolly, Willett, and Ho, Circuit Judges.

Per Curiam:* Hector Cervantes-Resendiz appeals the sentence imposed following his guilty plea conviction for illegal reentry after having previously been removed, pursuant to 8 U.S.C. § 1326(a) and (b)(2). Cervantes-Resendiz contends, for the first time on appeal, that it violates the Constitution to treat

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-50860 Document: 00516216063 Page: 2 Date Filed: 02/24/2022

No. 21-50860

a prior conviction that increases the statutory maximum under § 1326(b) as a sentencing factor, rather than as an element of the offense. Cervantes- Resendiz concedes that this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve the issue for future review. In addition, he has filed an unopposed motion for summary disposition.

As Cervantes-Resendiz concedes, the sole issue raised on appeal is foreclosed by Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019); United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014). Because his 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 disposition is proper. Accordingly, Cervantes-Resendiz’s motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED.