United States v. Garcia-Bertadillo

Case: 23-10474 Document: 00516930573 Page: 1 Date Filed: 10/13/2023

United States Court of Appeals for the Fifth Circuit ____________

United States Court of Appeals Fifth Circuit No. 23-10474

Summary Calendar FILED ____________ October 13, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus

Juan Garcia-Bertadillo,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:22-CR-81-1 ______________________________

Before Smith, Higginson, and Engelhardt, Circuit Judges.

Per Curiam: *

Juan Garcia-Bertadillo appeals the sentence for his conviction under 8 U.S.C. § 1326(a) and (b)(2) for illegal reentry after removal. He contends that his sentence exceeds the statutory maximum and is therefore unconsti- tutional because the district court enhanced it under § 1326(b) based on the fact of a prior conviction that was not alleged in the indictment. He correctly concedes that his argument is foreclosed by Almendarez-Torres v. United Case: 23-10474 Document: 00516930573 Page: 2 Date Filed: 10/13/2023

No. 23-10474

States, 523 U.S. 224 (1998), and explains that he raises this issue 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 a brief. Because summary affirmance is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the motion for summary affirmance is GRANTED, and the alternative motion for an extension of time to file a brief is DENIED. The judgment is AFFIRMED.