Case: 23-10613 Document: 00516995009 Page: 1 Date Filed: 12/08/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-10613 Summary Calendar FILED ____________ December 8, 2023 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Jose Eulalio Aguillen-Servin, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 4:22-CR-375-1 ______________________________ Before Willett, Duncan, and Wilson, Circuit Judges.

Per Curiam: * Jose Eulalio Aguillen-Servin appeals his sentence for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(1). He argues that the enhancement of his sentence under § 1326(b) is unconstitutional because it is based on facts not alleged in the indictment and neither admitted nor proved beyond a reasonable doubt. Aguillen-Servin correctly concedes that _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-10613 Document: 00516995009 Page: 2 Date Filed: 12/08/2023

No. 23-10613

this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). We have held that subsequent Supreme Court decisions, including Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), have not overruled Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019). Aguillen-Servin says that he raises this issue merely to preserve it for further review.

The Government has filed an unopposed motion for summary affirmance or, in the alternative, for an extension of time to file a brief on the merits. Because Almendarez-Torres forecloses Aguillen-Servin’s argument, summary disposition is appropriate. See Groendyke Transp. Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, the Government’s motion for summary affirmance is GRANTED, the Government’s alternative motion for an extension of time to file a brief is DENIED, and the district court’s judgment is AFFIRMED.