Case: 23-10548 Document: 00516974097 Page: 1 Date Filed: 11/20/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-10548 Summary Calendar FILED ____________ November 20, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Eduardo Garcia Briseno, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 3:22-CR-37-1 ______________________________ Before Smith, Higginson, and Engelhardt, Circuit Judges.

Per Curiam: * Eduardo Garcia Briseno appeals the sentence for his conviction under 8 U.S.C. § 1326(a) and (b)(1) for illegal reentry into the United States after removal. He contends that the enhancement of his sentence under § 1326(b) is unconstitutional because it was based on the fact of a prior conviction that was not alleged in the indictment and neither found by a jury nor admitted by

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-10548 Document: 00516974097 Page: 2 Date Filed: 11/20/2023

No. 23-10548

him.

Garcia Briseno correctly concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and he raises the issue merely to preserve it for further review. See United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019). The government therefore has moved without opposition for summary affirmance, or, alternatively, for an exten- sion of time to file its 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, the alternative motion for an extension is DENIED, and the judgment is AFFIRMED.