United States v. Salgado-Melendez

Case: 24-10083 Document: 46-1 Page: 1 Date Filed: 07/09/2024

United States Court of Appeals for the Fifth Circuit ____________

United States Court of Appeals Fifth Circuit No. 24-10083

Summary Calendar FILED ____________ July 9, 2024 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus

Daniel Salgado-Melendez,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:22-CR-309-1 ______________________________

Before Smith, Higginson, and Engelhardt, Circuit Judges.

Per Curiam: *

Daniel Salgado-Melendez appeals his sentence for illegal reentry in violation of 8 U.S.C. § 1326. For the first time on appeal, he 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 of § 1326(a) based on a prior conviction that was not alleged in the indictment or found by a jury beyond a reasonable doubt. As Salgado-Melendez cor- Case: 24-10083 Document: 46-1 Page: 2 Date Filed: 07/09/2024

No. 24-10083 rectly concedes, that 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 this issue to preserve if for further review. The government has filed an unopposed motion for summary affirm- ance or, alternatively, for an extension of time to file a brief. Because sum- mary affirmance is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the motion is GRANTED, the government’s alternative motion for an extension to file its brief is DENIED, and the judg- ment is AFFIRMED.