Case: 21-51140 Document: 00516280136 Page: 1 Date Filed: 04/14/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED April 14, 2022 No. 21-51140 Lyle W. Cayce Summary Calendar Clerk

United States of America, Plaintiff—Appellee, versus Miguel Andres-Tomas, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-627-1

Before Smith, Stewart, and Graves, Circuit Judges.

Per Curiam:* Miguel Andres-Tomas appeals his conviction for illegal reentry into the United States and his sentence of 21 months of imprisonment and three years of supervised release. He argues that 8 U.S.C. § 1326(b) is unconstitutional because it permits the increase of a sentence beyond the

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-51140 Document: 00516280136 Page: 2 Date Filed: 04/14/2022

No. 21-51140

otherwise-applicable statutory maximum based on facts that are neither charged in the indictment nor found by a jury beyond a reasonable doubt. He 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 and has filed an unopposed motion for summary disposition.

As Andres-Tomas concedes, the issue he raises is foreclosed by Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Andres-Tomas’s motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED.