Case: 22-50660 Document: 00516612574 Page: 1 Date Filed: 01/17/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 22-50660 Summary Calendar FILED ____________ January 17, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Dylan Brando Ervey Macias-Torres, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 2:21-CR-1824-1 ______________________________ Before Higginbotham, Graves, and Ho, Circuit Judges.

Per Curiam: * Dylan Brando Ervey Macias-Torres appeals his conviction and sentence for illegal reentry into the United States under 8 U.S.C. § 1326(a) and (b)(2). On appeal, he argues for the first time that the recidivism enhancement in § 1326(b) is unconstitutional because it permits a sentence above the otherwise-applicable statutory maximum established by § 1326(a) based on facts that are neither alleged in the indictment nor found by a jury _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-50660 Document: 00516612574 Page: 2 Date Filed: 01/17/2023

No. 22-50660

beyond a reasonable doubt. Macias-Torres acknowledges that this 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.

As Macias-Torres concedes, the sole issue raised on appeal is foreclosed by Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Summary disposition is therefore appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Accordingly, Macias-Torres’s motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED.