United States v. Ramirez-Zermeno

Case: 24-10606 Document: 41-1 Page: 1 Date Filed: 01/27/2025

United States Court of Appeals for the Fifth Circuit United States Court of Appeals ____________ Fifth Circuit FILED No. 24-10606 January 27, 2025 Summary Calendar Lyle W. Cayce ____________ Clerk United States of America,

Plaintiff—Appellee, versus

Jose Reyes Ramirez-Zermeno,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:24-CR-32-1 ______________________________

Before Elrod, Chief Judge, and Haynes, and Duncan, Circuit Judges.

Per Curiam:*

Jose Reyes Ramirez-Zermeno appeals following his conviction for illegal reentry in violation of 8 U.S.C. § 1326(a), arguing for the first time on appeal that the statutory sentencing enhancement in § 1326(b) is unconstitutional. He concedes this argument is foreclosed by Almendarez- Torres v. United States, 523 U.S. 224 (1998), and the Government has filed an Case: 24-10606 Document: 41-1 Page: 2 Date Filed: 01/27/2025

No. 24-10606 unopposed motion for summary affirmance or, alternatively, for an extension of time in which to file a brief.

The argument is foreclosed. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019); see also Erlinger v. United States, 602 U.S. 821, 838 (2024) (explaining that Almendarez-Torres “persists as a narrow exception permitting judges to find only the fact of a prior conviction” (internal quotation marks and citation omitted)). Therefore, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, the motion for summary affirmance is GRANTED, the alternative motion for an extension of time is DENIED, and the judgment of the district court is AFFIRMED.