Case: 23-50548 Document: 00517025823 Page: 1 Date Filed: 01/08/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-50548 Summary Calendar FILED ____________ January 8, 2024 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Selvin Yobany Fuentes-Ayala, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 2:21-CR-1638-1 ______________________________ Before Jones, Southwick, and Ho, Circuit Judges.

Per Curiam: * Selvin Yobany Fuentes-Ayala appeals his conviction and 46-month sentence for illegal re-entry into the United States under 8 U.S.C. § 1326.

For the first time on appeal, he argues that the recidivism enhancement in § 1326(b) is unconstitutional because it permits 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: 23-50548 Document: 00517025823 Page: 2 Date Filed: 01/08/2024

No. 23-50548

facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. While Fuentes-Ayala acknowledges this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), he nevertheless seeks to preserve it for possible Supreme Court review. In addition, Fuentes-Ayala has filed an unopposed motion for summary disposition.

This court has held that subsequent Supreme Court decisions such as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), did not overrule Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019). Thus, Fuentes-Ayala is correct that his argument is foreclosed, and summary disposition is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Fuentes-Ayala’s motion is GRANTED, and the district court’s judgment is AFFIRMED.