Case: 23-50016 Document: 00516816333 Page: 1 Date Filed: 07/11/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-50016 Summary Calendar FILED ____________ July 11, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Javier Omar Quintana-Reyes, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 4:22-CR-607-1 ______________________________ Before King, Higginson, and Willett, Circuit Judges.

Per Curiam: * Javier Omar Quintana-Reyes appeals his conviction and sentence for illegal reentry into the United States after deportation. On appeal, Quintana- Reyes contends that the recidivism enhancement in 8 U.S.C. § 1326(b) is unconstitutional because it permits a sentence above the otherwise applicable statutory maximum established by § 1326(a), based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-50016 Document: 00516816333 Page: 2 Date Filed: 07/11/2023

No. 23-50016

Although Quintana-Reyes acknowledges that 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 and 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); United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014). Accordingly, Quintana-Reyes 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).

IT IS ORDERED that Quintana-Reyes’s motion is GRANTED, and the district court’s judgment is AFFIRMED.