Case: 22-50168 Document: 00516543887 Page: 1 Date Filed: 11/14/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit No. 22-50168 Summary Calendar FILED November 14, 2022 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Pascual Agustin-Basilio, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-882-1

Before Smith, Dennis, and Southwick, Circuit Judges.

Per Curiam:* Pascual Agustin-Basilio appeals his conviction and sentence for illegal reentry after removal in violation of 8 U.S.C. § 1326(a) and (b)(1). He con- tends that the recidivism enhancement in § 1326(b) is unconstitutional because it permits a sentence above the otherwise-applicable statutory maxi-

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circum- stances set forth in 5th Circuit Rule 47.5.4.

Case: 22-50168 Document: 00516543887 Page: 2 Date Filed: 11/14/2022

No. 22-50168

mum in § 1326(a), based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. Agustin-Basilio acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he seeks to preserve it for possible Supreme Court review. Accordingly, he has filed an unopposed motion for summary disposition.

Subsequent 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). Agustin-Basilio therefore is correct that his theory is foreclosed.

Because his position “is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case,” summary disposition is proper. Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Accordingly, the motion for summary disposition is GRANTED, and the judgment is AFFIRMED.