Case: 22-50308 Document: 00516463476 Page: 1 Date Filed: 09/07/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 22-50308 September 7, 2022 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Carlos Brito-Brito, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 3:21-CR-1988-1

Before King, Higginson, and Willett, Circuit Judges.

Per Curiam:* Carlos Brito-Brito appeals his conviction and sentence for illegal reentry into the United States under 8 U.S.C. § 1326(a) and (b)(1). For the first time on appeal, Brito-Brito 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* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 22-50308 Document: 00516463476 Page: 2 Date Filed: 09/07/2022

No. 22-50308

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 Brito-Brito acknowledges that 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, Brito-Brito has filed an unopposed motion for summary disposition.

We have 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, Brito-Brito 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).

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