Case: 23-50580 Document: 53-1 Page: 1 Date Filed: 03/01/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-50580 Summary Calendar FILED ____________ March 1, 2024 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Miguel Cabrera-Olvera, Defendant—Appellant, consolidated with _____________ No. 23-50592 Summary Calendar _____________ United States of America, Plaintiff—Appellee, versus Miguel Angel Cabrera-Olvera Defendant—Appellant.

Case: 23-50580 Document: 53-1 Page: 2 Date Filed: 03/01/2024

______________________________ Appeals from the United States District Court for the Western District of Texas USDC Nos. 2:22-CR-2988-1, 2:22-CR-2439-1 ______________________________ Before Jones, Smith, and Dennis, Circuit Judges.

Per Curiam: * Miguel Angel Cabrera-Olvera appeals his conviction and sentence for illegal reentry into the United States under 8 U.S.C. § 1326(a) and (b)(1), as well as the revocation of his term of supervised release related to a prior illegal reentry conviction. Cabrera-Olvera does not raise any issues in connection with the revocation of his term of supervised release. Rather, he argues for the first time on appeal 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 are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. Although Cabrera-Olvera 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, and he 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, Cabrera-Olvera 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).

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

Case: 23-50580 Document: 53-1 Page: 3 Date Filed: 03/01/2024

23-50580 c/w No. 23-50592 Cabrera-Olvera’s motion is GRANTED, and the judgments are AFFIRMED.