Case: 24-50319 Document: 45-1 Page: 1 Date Filed: 12/12/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 24-50319 FILED December 12, 2024 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Rafael Paredes-Hinojosa, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 2:23-CR-378-1 ______________________________ Before Graves, Willett, and Wilson, Circuit Judges.

Per Curiam: * Rafael Paredes-Hinojosa appeals his conviction and sentence under 8 U.S.C. §§ 1326(a) and (b)(2). For the first time on appeal, he contends that § 1326(b)(2) violates the Constitution by treating a prior conviction that increases the statutory maximum under the statute as a sentencing factor, rather than as an element of the offense. He correctly concedes that his _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 24-50319 Document: 45-1 Page: 2 Date Filed: 12/12/2024

No. 24-50319

argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he wishes to preserve it for further review. See United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019).

Because the only issue before us is foreclosed by precedent and “there can be no substantial question as to the outcome of the case,” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), we GRANT the Government’s motion for summary affirmance, and we DENY its alternative motion for an extension of time to file an appellate brief. The judgment of the district court is AFFIRMED.