United States v. Nunez-Coronado

Case: 24-50747 Document: 46-1 Page: 1 Date Filed: 03/10/2025

United States Court of Appeals for the Fifth Circuit ____________

United States Court of Appeals Fifth Circuit No. 24-50747

Summary Calendar FILED ____________ March 10, 2025 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus

Ricardo Iran Nunez-Coronado,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 3:24-CR-922-1 ______________________________

Before Jolly, Jones, and Willett, Circuit Judges.

Per Curiam: *

Ricardo Iran Nunez-Coronado 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 Nunez-Coronado’s 15-month term of imprisonment is within the Case: 24-50747 Document: 46-1 Page: 2 Date Filed: 03/10/2025

No. 24-50747 otherwise applicable statutory maximum in § 1326(a), he alleges that his two- 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). The Government moves for summary affirmance or, alternatively, an extension of time in which to file a brief. Nunez-Coronado takes no position on the motion but concedes that his argument is foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998). Because Nunez-Coronado correctly concedes that his argument is foreclosed by Almendarez-Torres, 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 to file a brief is DENIED, and the district court’s judgment is AFFIRMED.