Case: 23-50045 Document: 00516933020 Page: 1 Date Filed: 10/16/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-50045 Summary Calendar FILED ____________ October 16, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Mario Astudillo-Herrera, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 5:22-CR-166-1 ______________________________ Before Davis, Willett, and Oldham, Circuit Judges.

Per Curiam: * Mario Astudillo-Herrera appeals his conviction and sentence under 8 U.S.C. § 1326 for illegal entry into the United States after removal. He argues for the first time on appeal that § 1326(b) is unconstitutional.

Astudillo-Herrera has filed an unopposed motion for summary disposition acknowledging that his argument is foreclosed by Almendarez-Torres v. _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-50045 Document: 00516933020 Page: 2 Date Filed: 10/16/2023

No. 23-50045

United States, 523 U.S. 224 (1998), but he seeks to preserve it for possible Supreme Court review.

This court has 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). Thus, Astudillo-Herrera 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).

Astudillo-Herrera’s motion is GRANTED, and the district court’s judgment is AFFIRMED.