Case: 22-51040 Document: 00516809727 Page: 1 Date Filed: 07/05/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 22-51040 Summary Calendar FILED ____________ July 5, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Carlos Esau Hernandez-Chavez, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 1:21-CR-52-1 ______________________________ Before Dennis, Elrod, and Willett, Circuit Judges.

Per Curiam: * Carlos Esau Hernandez-Chavez appeals his conviction and sentence for illegal reentry after removal, in violation of 8 U.S.C. § 1326(a) and (b)(2).

Hernandez-Chavez contends that § 1326(b) is unconstitutional because it permits a sentence above the otherwise-applicable statutory maximum based on facts that were neither alleged in the indictment nor found by a jury _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 22-51040 Document: 00516809727 Page: 2 Date Filed: 07/05/2023

No. 22-51040

beyond a reasonable doubt. He correctly acknowledges that 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 seeks to preserve the issue for further review and has filed an unopposed motion for summary disposition. Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Hernandez-Chavez’s motion is GRANTED, and the district court’s judgment is AFFIRMED.