United States v. Ardon-Amaya

Case: 24-50570 Document: 43-1 Page: 1 Date Filed: 03/11/2025

United States Court of Appeals for the Fifth Circuit

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United States Court of Appeals

Fifth Circuit

No. 24-50570

Summary Calendar FILED ____________ March 11, 2025

Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee, versus

Eblin Omar Ardon-Amaya,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 2:23-CR-2801-1

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Before Smith, Stewart, and Duncan, Circuit Judges.

Per Curiam: *

Eblin Ardon-Amaya appeals following his conviction of illegal reentry in violation of 8 U.S.C. § 1326, contending for the first time on appeal that the sentencing enhancement in § 1326(b) is unconstitutional. The govern- ment moves for summary affirmance or, alternatively, for an extension of time to file its brief. Ardon-Amaya takes no position on the motion but con- cedes that his argument is foreclosed by Almendarez-Torres v. United States, Case: 24-50570 Document: 43-1 Page: 2 Date Filed: 03/11/2025

No. 24-50570

523 U.S. 224 (1998).

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 quota- tion marks and citation omitted)). Therefore, summary affirmance is appro- priate. 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 is AFFIRMED.