Case: 23-10486 Document: 00517020523 Page: 1 Date Filed: 01/03/2024

United States Court of Appeals for the Fifth Circuit _____________ United States Court of Appeals Fifth Circuit No. 23-10486 consolidated with FILED No. 23-10496 January 3, 2024 _____________ Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Armando Ordonez-Dominguez, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC Nos. 2:22-CR-129-1, 2:22-CR-117-1 ______________________________ Before Willett, Duncan, and Wilson, Circuit Judges.

Per Curiam: * Armando Ordonez-Dominguez was sentenced to 37 months of imprisonment and three years of supervised release following his guilty plea and conviction for illegal reentry after deportation in violation of 8 U.S.C. § 1326. He appeals his sentence and argues for the first time on appeal that § 1326(b) is unconstitutional because it permits a defendant to be _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-10486 Document: 00517020523 Page: 2 Date Filed: 01/03/2024

23-10486 c/w No. 23-10496 sentenced above the statutory maximum of § 1326(a) based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. He does not appeal the revocation of his supervised release or his revocation sentence.

Ordonez-Dominguez correctly concedes 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. The Government has moved, without opposition, for summary affirmance, or in the alternative, for an extension of time to file a brief on the merits.

Because summary affirmance is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the Government’s unopposed motion for summary affirmance is GRANTED, and the district court’s judgments are AFFIRMED. The Government’s alternative motion for an extension of time to file a brief is DENIED.