Case: 23-50087 Document: 00516771424 Page: 1 Date Filed: 06/01/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-50087 Summary Calendar FILED ____________ June 1, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Hermenegildo Garcia-Gutierrez, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 4:22-CR-636-1 ______________________________ Before Stewart, Dennis, and Willett, Circuit Judges.

Per Curiam: * Hermenegildo Garcia-Gutierrez appeals his sentence for illegal reentry into the United States under 8 U.S.C. § 1326(a) and (b)(1). Garcia- Gutierrez argues that the recidivism enhancement in § 1326(b) is unconstitutional because it permits a sentence above the applicable maximum in § 1326(a), based on facts neither alleged in the indictment nor _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-50087 Document: 00516771424 Page: 2 Date Filed: 06/01/2023

No. 23-50087

found by a jury beyond a reasonable doubt. Garcia-Gutierrez acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he nevertheless seeks to preserve it for possible Supreme Court review. Accordingly, Garcia-Gutierrez has filed an unopposed motion for summary disposition.

We have 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). As Garcia-Gutierrez concedes that his argument is foreclosed, summary disposition is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Garcia-Gutierrez’s motion is GRANTED, and the district court’s judgment is AFFIRMED.