Case: 23-10257 Document: 00516892697 Page: 1 Date Filed: 09/12/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-10257 Summary Calendar FILED ____________ September 12, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Ubaldo De La Cruz Leyva, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 3:20-CR-405-1 ______________________________ Before Jolly, Higginson, and Duncan, Circuit Judges.

Per Curiam: * Ubaldo De La Cruz Leyva appeals his conviction and 50-month sentence for reentry after deportation under 8 U.S.C. § 1326(a) and (b)(1).

De La Cruz Leyva argues that using a prior felony conviction never alleged in the indictment to impose a statutorily enhanced sentence violates the Sixth Amendment. De La Cruz Leyva correctly concedes that his argument is _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-10257 Document: 00516892697 Page: 2 Date Filed: 09/12/2023

No. 23-10257

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he wishes to preserve it for further review. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). The Government has moved without opposition for summary affirmance or, alternatively, for an extension of time to file its brief.

Because the Government’s position “is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case,” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), summary affirmance is proper. Accordingly, the Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. The Government’s alternative motion for an extension of time to file a brief is DENIED.