Case: 22-50810 Document: 00516717528 Page: 1 Date Filed: 04/19/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 22-50810 Summary Calendar FILED ____________ April 19, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Alvaro Pacheco-Derma, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 4:22-CR-234-1 ______________________________ Before Higginbotham, Graves, and Ho, Circuit Judges.

Per Curiam: * Alvaro Pacheco-Derma appeals his conviction and sentence for illegal reentry into the United States under 8 U.S.C. § 1326(a) and (b)(1). For the first time on appeal, he argues 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 _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-50810 Document: 00516717528 Page: 2 Date Filed: 04/19/2023

No. 22-50810

are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. While Pacheco-Derma acknowledges this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), he nevertheless seeks to preserve it for possible Supreme Court review. In addition, Pacheco- Derma has filed an unopposed motion for summary disposition.

This court has held that subsequent Supreme Court decisions such as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), did not overrule Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Thus, Pacheco-Derma is correct that his argument is foreclosed, and summary disposition is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Pacheco-Derma’s motion is GRANTED, and the district court’s judgment is AFFIRMED.