Case: 23-10937 Document: 40-1 Page: 1 Date Filed: 04/03/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 23-10937 Summary Calendar FILED ____________ April 3, 2024 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Daniel Salgado, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 4:23-CR-82-1 ______________________________ Before King, Haynes, and Graves, Circuit Judges.

Per Curiam: * Daniel Salgado appeals his conviction and sentence for illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(1). Salgado argues that treating a prior felony conviction that increases the statutory maximum under § 1326(b) as a sentencing factor, rather than a separate element of the offense, violates the Constitution. While Salgado’s 12-month term of _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-10937 Document: 40-1 Page: 2 Date Filed: 04/03/2024

No. 23-10937

imprisonment is within the otherwise applicable statutory maximum in § 1326(a), he complains that his three-year term of supervised release exceeds the one-year statutory maximum that applies without a § 1326(b) enhancement. See 18 U.S.C. §§ 3559(a), 3583(b). However, Salgado concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and merely raises this issue to preserve it for further review. The Government therefore has filed an unopposed motion for summary affirmance, or, alternatively, for an extension of time to file a brief.

Because Salgado is correct that his argument is foreclosed, see United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019), summary affirmance is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). The Government’s motion for summary affirmance is GRANTED, the Government’s alternative motion for an extension of time to file a brief is DENIED, and the district court’s judgment is AFFIRMED.