United States v. Mena-Mena

Case: 24-50708 Document: 45-1 Page: 1 Date Filed: 03/24/2025

United States Court of Appeals for the Fifth Circuit

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United States Court of Appeals

Fifth Circuit

No. 24-50708 consolidated with FILED

No. 24-50709 March 24, 2025 ____________ Lyle W. Cayce

Clerk United States of America,

Plaintiff—Appellee, versus

Jose Reyes Mena-Mena,

Defendant—Appellant. ______________________________ Appeals from the United States District Court for the Western District of Texas USDC Nos. 4:23-CR-124-1, 4:24-CR-97-1

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Before Graves, Willett, and Wilson, Circuit Judges.

Per Curiam: *

Jose Reyes Mena-Mena appeals the sentence imposed following his guilty plea conviction for illegal reentry in violation of 8 U.S.C. § 1326. On appeal, he challenges the application of the enhanced penalty range in § 1326(b) as unconstitutional because it permits a defendant to be sentenced Case: 24-50708 Document: 45-1 Page: 2 Date Filed: 03/24/2025

No. 24-50708 c/w No. 24-50709 above the statutory maximum of § 1326(a) based on a prior conviction that was not alleged in the indictment or found by a jury beyond a reasonable doubt. He expressly declines to raise any issue regarding the consolidated appeal from his supervised release revocation proceeding.

The Government has filed a motion for summary affirmance or, alternatively, for an extension of time to file a brief. Mena-Mena takes no position on the motion, but he correctly concedes that the asserted issue 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). He raises this issue to preserve it for further review.

Because summary affirmance is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the Government’s motion for summary affirmance is GRANTED, the Government’s alternative motion for an extension of time to file a brief is DENIED, and the district court’s judgments are AFFIRMED.