United States v. Howard-Rios

Case: 24-10134 Document: 40-1 Page: 1 Date Filed: 08/23/2024

United States Court of Appeals for the Fifth Circuit ____________

United States Court of Appeals Fifth Circuit No. 24-10134

Summary Calendar FILED ____________ August 23, 2024 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus

Santiago Parks Howard-Rios,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 2:23-CR-3-1 ______________________________

Before Davis, Smith, and Higginson, Circuit Judges.

Per Curiam: *

Santiago Parks Howard-Rios appeals his sentence for illegal reentry under 8 U.S.C. § 1326(a) and (b)(1), arguing that the enhancement of his sentence under § 1326(b) is unconstitutional because it is based on facts not alleged in the indictment and either admitted or proved beyond a reasonable doubt. He concedes this argument is foreclosed by Almendarez-Torres v. Case: 24-10134 Document: 40-1 Page: 2 Date Filed: 08/23/2024

United States, 523 U.S. 224 (1998), but explains that he wishes to preserve it for further review. The Government has filed an unopposed motion for summary affirmance or, alternatively, for an extension of time in which to file a brief.

Because Howard-Rios is correct that his argument is foreclosed, see United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019), summary affirmance 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, its alternative motion for an extension of time is DENIED, and the judgment of the district court is AFFIRMED.