Case: 22-50085 Document: 00516398602 Page: 1 Date Filed: 07/19/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED July 19, 2022 No. 22-50085 Lyle W. Cayce Summary Calendar Clerk

United States of America, Plaintiff—Appellee, versus Pedro Lopez-Ruiz, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-883-1

Before Southwick, Oldham, and Wilson, Circuit Judges.

Per Curiam:* Pedro Lopez-Ruiz appeals his conviction and sentence for illegal reentry into the United States under 8 U.S.C. § 1326(a) and (b)(2). For the first time on appeal, Lopez-Ruiz contends that the recidivism enhancement in § 1326(b) is unconstitutional because it permits a sentence above 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* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 22-50085 Document: 00516398602 Page: 2 Date Filed: 07/19/2022

No. 22-50085

otherwise-applicable statutory maximum established by § 1326(a), based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. While Lopez-Ruiz acknowledges this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), he nevertheless seeks to preserve it for possible Supreme Court review. In addition, Lopez-Ruiz has filed an unopposed motion for summary disposition.

This court has held that subsequent Supreme Court decisions such as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), did not overrule Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Thus, Lopez-Ruiz is correct that his argument is foreclosed, and summary disposition is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Lopez-Ruiz’s motion is GRANTED and the district court’s judgment is AFFIRMED.