United States v. Jimenez-Vinagre

Case: 24-50591 Document: 44-1 Page: 1 Date Filed: 02/20/2025

United States Court of Appeals for the Fifth Circuit

____________ United States Court of Appeals

Fifth Circuit

No. 24-50591

FILED February 20, 2025

Summary Calendar

____________ Lyle W. Cayce

Clerk United States of America,

Plaintiff—Appellee, versus

Elias Jimenez-Vinagre,

Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 2:22-CR-1956-1

______________________________

Before Davis, Smith, and Higginson, Circuit Judges.

Per Curiam: *

Elias Jimenez-Vinagre appeals following his conviction of illegal reentry under 8 U.S.C. § 1326, arguing for the first time that the statutory sentencing enhancement in § 1326(b) is unconstitutional. The Government moves for summary affirmance or, alternatively, an extension of time in Case: 24-50591 Document: 44-1 Page: 2 Date Filed: 02/20/2025

No. 24-50591 which to file an appellate brief. Jimenez-Vinagre takes no position on the motion but concedes that his argument is foreclosed.

As Jimenez-Vinagre concedes, his argument 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); 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)). Summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Accordingly, the Government’s 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.