Case: 24-50177 Document: 38-1 Page: 1 Date Filed: 09/27/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 24-50177 Summary Calendar FILED ____________ September 27, 2024 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Martin Diaz-Nunez, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 3:23-CR-2198-1 ______________________________ Before Jones, Dennis, and Southwick, Circuit Judges.

Per Curiam: * Martin Diaz-Nunez appeals the sentence imposed following his guilty plea conviction for illegal reentry after removal in violation of 8 U.S.C. § 1326. For the first time on appeal, Diaz-Nunez 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 _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 24-50177 Document: 38-1 Page: 2 Date Filed: 09/27/2024

No. 24-50177

§ 1326(a) based on the fact of a prior conviction that was neither alleged in the indictment nor found by a jury beyond a reasonable doubt. He has filed an unopposed motion for summary disposition and a letter brief correctly conceding that 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 the issue to preserve it for Supreme Court review.

Because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Diaz-Nunez’s motion is GRANTED, and the district court’s judgment is AFFIRMED.