Case: 22-50349 Document: 00516601203 Page: 1 Date Filed: 01/06/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 22-50349 Summary Calendar FILED ____________ January 6, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Antonio Avila-Olivares, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-1015-1 ______________________________ Before Davis, Duncan, and Engelhardt, Circuit Judges.

Per Curiam: * Antonio Avila-Olivares appeals his conviction and sentence for illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2), contending that the enhancement of his sentence pursuant to § 1326(b) is unconstitutional because the fact of a prior conviction was not charged and proved beyond a reasonable doubt. He has filed an unopposed motion for summary disposition and a letter brief explaining that he raises this issue only to _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-50349 Document: 00516601203 Page: 2 Date Filed: 01/06/2023

No. 22-50349

preserve it for further review and correctly conceding it to be 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), Avila-Olivares’s motion is GRANTED, and the judgment of the district court is AFFIRMED.