Case: 22-10546 Document: 00516619628 Page: 1 Date Filed: 01/23/2023

United States Court of Appeals for the Fifth Circuit United States Court of Appeals ____________ Fifth Circuit FILED No. 22-10546 January 23, 2023 Summary Calendar Lyle W. Cayce ____________ Clerk United States of America, Plaintiff—Appellee, versus Jose Isabel Mora-Rodriguez, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 4:21-CR-339-1 ______________________________ Before Stewart, Dennis, and Willett, Circuit Judges.

Per Curiam: * Jose Isabel Mora-Rodriguez appeals his conviction and sentence for illegal reentry after removal from the United States under 8 U.S.C. § 1326(a) & (b)(1). Mora-Rodriguez challenges the application of § 1326(b)’s enhanced penalty provision 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 was not alleged in the indictment or _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-10546 Document: 00516619628 Page: 2 Date Filed: 01/23/2023

No. 22-10546

found by a jury beyond a reasonable doubt. As he 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 nevertheless raises the issue to preserve it for Supreme Court review. The Government agrees that the issue is foreclosed and moves, unopposed, for summary affirmance on that basis or, alternatively, for 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.