Case: 22-50370 Document: 00516577267 Page: 1 Date Filed: 12/13/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit No. 22-50370 Summary Calendar FILED December 13, 2022 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Paulo Bernal-Ceto, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-1070-1

Before Stewart, Duncan, and Wilson, Circuit Judges.

Per Curiam:* Paulo Bernal-Ceto appeals his sentence for his guilty plea conviction of illegal reentry after removal from the United States in violation of 8 U.S.C. § 1326. For the first time on appeal, he challenges the district court’s application of the enhanced penalty range in § 1326(b) as unconstitutional because it permits a defendant to be sentenced above the statutory maximum

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-50370 Document: 00516577267 Page: 2 Date Filed: 12/13/2022

No. 22-50370

of § 1326(a) based on the fact of a prior conviction that was not alleged in the indictment or found by a jury beyond a reasonable doubt. He raises the issue to preserve it for further review and has filed an unopposed motion for summary disposition, correctly conceding that it 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), Bernal-Ceto’s motion is GRANTED, and the district court’s judgment is AFFIRMED.