Case: 22-10423 Document: 00516612942 Page: 1 Date Filed: 01/17/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 22-10423 Summary Calendar FILED ____________ January 17, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Hugo Perez-Mendoza, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 4:21-CR-312-1 ______________________________ Before Davis, Smith, and Douglas, Circuit Judges.

Per Curiam: * Hugo Perez-Mendoza appeals his sentence for his guilty plea conviction of illegal reentry after removal in violation of 8 U.S.C. § 1326.

Renewing an argument made before the district court, Perez-Mendoza challenges the application of the enhanced penalty range in § 1326(b) as unconstitutional because it permits a defendant to be sentenced above the statutory maximum of § 1326(a) based on the fact of a prior conviction that _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-10423 Document: 00516612942 Page: 2 Date Filed: 01/17/2023

No. 22-10423

was not alleged in the indictment or found by a jury beyond a reasonable doubt. As he correctly concedes, 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 raises the issue to preserve it for Supreme Court review. The Government has filed an unopposed motion for summary affirmance agreeing that the issue is foreclosed and, in the alternative, requesting an extension of time to file a brief.

Because summary affirmance is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the Government’s motion is GRANTED, and the district court’s judgment is AFFIRMED. The Government’s alternative motion for an extension of time to file a brief is DENIED.