Case: 21-51118 Document: 00516420530 Page: 1 Date Filed: 08/04/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 21-51118 August 4, 2022 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Oswaldo Omar Ramirez-Ortiz, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-622-1

Before Jones, Haynes, and Oldham, Circuit Judges.

Per Curiam:* Oswaldo Omar Ramirez-Ortiz appeals his conviction and sentence for illegal reentry after deportation under 8 U.S.C. § 1326(a) and (b)(2).

Ramirez-Ortiz argues that treating a prior felony or aggravated felony conviction that increases the statutory maximum under § 1326(b) as a

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-51118 Document: 00516420530 Page: 2 Date Filed: 08/04/2022

No. 21-51118

sentencing factor, rather than a separate element of the offense, violates the Constitution. He has filed an unopposed motion for summary disposition and a letter brief explaining that he has raised the issue only to preserve it for further review and correctly conceding that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). 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), Ramirez-Ortiz’s motion is GRANTED, and the judgment of the district court is AFFIRMED.