Case: 23-50788 Document: 45-1 Page: 1 Date Filed: 04/04/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 23-50788 FILED April 4, 2024 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Luis Alfredo Nanez-Lopez, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 4:23-CR-199-1 ______________________________ Before Jones, Smith, and Dennis, Circuit Judges.

Per Curiam:* Luis Alfredo Nanez-Lopez appeals the sentence imposed following his guilty plea conviction for illegal reentry after deportation in violation of 8 U.S.C. § 1326. For the first time on appeal, Nanez-Lopez challenges the application of the enhanced penalty range in § 1326(b) as unconstitutional because it permits a defendant to be sentenced above the statutory maximum _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 23-50788 Document: 45-1 Page: 2 Date Filed: 04/04/2024

No. 23-50788

of § 1326(a) based on the fact of a prior conviction that was not alleged in the indictment or found by a jury beyond a reasonable doubt. As he correctly concedes, this issue 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 raises the issue to preserve it for Supreme Court review. He has also filed an unopposed motion for summary affirmance further conceding that the issue is foreclosed.

Because summary affirmance is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), Nanez-Lopez’s motion is GRANTED, and the district court’s judgment is AFFIRMED.