Case: 23-50368 Document: 00517023360 Page: 1 Date Filed: 01/05/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-50368 Summary Calendar FILED ____________ January 5, 2024 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Artemio Aguilar-Montero, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 2:22-CR-1627-1 ______________________________ Before Davis, Willett, and Oldham, Circuit Judges.

Per Curiam: * Artemio Aguilar-Montero appeals his conviction and sentence for being found in the United States after a previous deportation. He argues that 8 U.S.C. § 1326(b) is unconstitutional because it allows a sentence above the otherwise applicable statutory maximum established by § 1326(a) based on

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-50368 Document: 00517023360 Page: 2 Date Filed: 01/05/2024

No. 23-50368

facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt.

Aguilar-Montero has filed an unopposed motion for summary disposition and a letter brief correctly conceding that the only issue he raises 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 explains that he has raised the issue to preserve it for possible further review. Accordingly, because summary disposition is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Aguilar-Montero’s motion is GRANTED, and the district court’s judgment is AFFIRMED.