Case: 24-10329 Document: 46-1 Page: 1 Date Filed: 09/10/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 24-10329 Summary Calendar FILED ____________ September 10, 2024 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Alfredo Alvarado-Varela, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 4:23-CR-286-1 ______________________________ Before Haynes, Higginson, and Douglas, Circuit Judges.

Per Curiam: * Alfredo Alvarado-Varela appeals the sentence imposed following his guilty plea conviction for illegal reentry in violation of 8 U.S.C. § 1326.

Alvarado-Varela challenges the application of the enhanced penalty range in § 1326(b) as unconstitutional because it permits a defendant to be sentenced above the statutory maximum of § 1326(a) based on a prior conviction that _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 24-10329 Document: 46-1 Page: 2 Date Filed: 09/10/2024

No. 24-10329

was not alleged in the indictment or found by a jury beyond a reasonable doubt. As he correctly concedes, this issue is foreclosed by Almendarez- Torres v. United States, 523 U.S. 224 (1998). See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). He raises this issue to preserve it for further review. The Government has filed an unopposed motion for summary affirmance or, alternatively, for an extension of time to file a brief.

Because summary affirmance is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), 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.