Case: 21-51069 Document: 00516426512 Page: 1 Date Filed: 08/10/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 10, 2022 No. 21-51069 Lyle W. Cayce Summary Calendar Clerk

United States of America, Plaintiff—Appellee, versus Jose Rene Cante-Dondiego, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 3:21-CR-895-1

Before Higginbotham, Graves, and Ho, Circuit Judges.

Per Curiam:* Jose Rene Cante-Dondiego appeals his conviction and sentence for illegal reentry after deportation under 8 U.S.C. § 1326(a) and (b)(1). Cante- Dondiego argues that treating a prior felony or aggravated felony conviction that increases the statutory maximum under § 1326(b) as a sentencing factor,

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-51069 Document: 00516426512 Page: 2 Date Filed: 08/10/2022

No. 21-51069

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), Cante-Dondiego’s motion is GRANTED, and the judgment of the district court is AFFIRMED.