Case: 23-50576 Document: 00517054311 Page: 1 Date Filed: 02/02/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-50576 Summary Calendar FILED ____________ February 2, 2024 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Julio Cesar Guzman-Avila, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 2:21-CR-1564-1 ______________________________ Before Jones, Southwick, and Ho, Circuit Judges.

Per Curiam: * Julio Cesar Guzman-Avila appeals his conviction and 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 facts that _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-50576 Document: 00517054311 Page: 2 Date Filed: 02/02/2024

No. 23-50576

are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. While Guzman-Avila 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, Guzman- Avila 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, Guzman-Avila 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).

Guzman-Avila’s motion is GRANTED, and the district court’s judgment is AFFIRMED.