Case: 23-50351 Document: 00516972593 Page: 1 Date Filed: 11/17/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-50351 Summary Calendar FILED ____________ November 17, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Angelina Pascual-Juan, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 4:22-CR-782-1 ______________________________ Before Wiener, Stewart, and Douglas, Circuit Judges.

Per Curiam: * Defendant-Appellant Angelina Pascual-Juan appeals her guilty plea conviction and sentence for illegal reentry after removal in violation of 8 U.S.C. § 1326(a) and (b)(1). She argues that the recidivism enhancement in § 1326(b) is unconstitutional because it permits a sentence above the otherwise applicable statutory maximum established by § 1326(a) through _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-50351 Document: 00516972593 Page: 2 Date Filed: 11/17/2023

No. 23-50351

reliance on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. She acknowledges that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but she seeks to preserve it for possible Supreme Court review. Accordingly, she 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). Pascual-Juan is, therefore, correct that her argument is foreclosed. Because her position “is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case,” summary disposition is proper. Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Accordingly, Pascual-Juan’s motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED.