Case: 22-50388 Document: 00516489002 Page: 1 Date Filed: 09/29/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 29, 2022 No. 22-50388 Lyle W. Cayce Summary Calendar Clerk

United States of America, Plaintiff—Appellee, versus Martin Robert Moncada-Aguirre, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 1:22-CR-22-1

Before Jones, Haynes, and Oldham, Circuit Judges.

Per Curiam:* Martin Robert Moncada-Aguirre appeals his conviction and sentence for illegal reentry after removal, in violation of 8 U.S.C. § 1326(a) and (b)(1).

Moncada-Aguirre contends that § 1326(b) is unconstitutional because it permits a sentence above the otherwise-applicable statutory maximum based

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 22-50388 Document: 00516489002 Page: 2 Date Filed: 09/29/2022

No. 22-50388

on facts that were neither alleged in the indictment nor found by a jury beyond a reasonable doubt. He acknowledges that this issue 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). He nevertheless seeks to preserve the issue for further review and has filed an unopposed motion for summary disposition. Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Moncada-Aguirre’s motion is GRANTED, and the district court’s judgment is AFFIRMED.