Case: 24-50388 Document: 49-1 Page: 1 Date Filed: 01/10/2025

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 24-50388 Summary Calendar FILED ____________ January 10, 2025 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Francisco Quintana-Catalan, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 2:22-CR-408-1 ______________________________ Before King, Southwick, and Engelhardt, Circuit Judges.

Per Curiam: * Francisco Quintana-Catalan appeals his conviction and sentence for illegal reentry into the United States after having been previously removed in violation of 8 U.S.C. § 1326(a) and (b)(1). 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) _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 24-50388 Document: 49-1 Page: 2 Date Filed: 01/10/2025

No. 24-50388

based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. His 46-month term of imprisonment exceeds the statutory maximum in § 1326(a), and his three-year term of supervised release is only authorized by § 1326(b), by virtue of 18 U.S.C. §§ 3559(a)(3) and 3583(b)(2).

Quintana-Catalan acknowledges that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he nevertheless seeks to preserve it for possible Supreme Court review. The Government has moved, without opposition, for summary affirmance or, alternatively, for an extension of time to file its brief.

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). Quintana-Catalan is thus correct that his argument is foreclosed. Because the Government’s position “is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case,” summary affirmance is appropriate. Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. The Government’s alternative motion for an extension of time is DENIED.