Case: 24-50734 Document: 43-1 Page: 1 Date Filed: 02/12/2025

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 24-50734 Summary Calendar FILED ____________ February 12, 2025 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Sergio Abimael Ochoa-Juarez, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 2:23-CR-3324-1 ______________________________ Before Smith, Stewart, and Duncan, Circuit Judges.

Per Curiam: * Sergio Abimael Ochoa-Juarez appeals his sentence under 8 U.S.C. § 1326. For the first time on appeal, he argues that § 1326(b) violates the Constitution by treating a prior conviction that increases the statutory maximum as a sentencing factor, rather than as an element of the offense.

Although Ochoa-Juarez’s 21-month term of imprisonment is within the _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 24-50734 Document: 43-1 Page: 2 Date Filed: 02/12/2025

No. 24-50734

otherwise applicable statutory maximum in § 1326(a), he alleges 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). Ochoa-Juarez acknowledges that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but nonetheless raises the argument to preserve it for further review. The Government has moved without opposition for summary affirmance or, alternatively, for an extension of time to file its brief.

Because Ochoa-Juarez correctly concedes that his argument is foreclosed by Almendarez-Torres, 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). 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.