Case: 22-50907 Document: 00516792934 Page: 1 Date Filed: 06/20/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 22-50907 Summary Calendar FILED ____________ June 20, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Simon Mendez-Alvarez, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 4:22-CR-205-1 ______________________________ Before Davis, Duncan, and Engelhardt, Circuit Judges.

Per Curiam: * Simon Mendez-Alvarez appeals his concurrent sentences for visa fraud under 18 U.S.C. § 1546, and illegal reentry into the United States under 8 U.S.C. § 1326(a) and (b)(2). Mendez-Alvarez 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

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-50907 Document: 00516792934 Page: 2 Date Filed: 06/20/2023

No. 22-50907

the indictment nor found by a jury beyond a reasonable doubt. Mendez- Alvarez 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, Mendez-Alvarez 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 Mendez-Alvarez concedes that his argument is foreclosed, summary disposition is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Mendez-Alvarez’s motion is GRANTED, and the district court’s judgment is AFFIRMED.