Case: 24-50753 Document: 57-1 Page: 1 Date Filed: 04/02/2025

United States Court of Appeals for the Fifth Circuit _____________ United States Court of Appeals Fifth Circuit No. 24-50753 consolidated with FILED April 2, 2025 No. 24-50754 Summary Calendar Lyle W. Cayce _____________ Clerk United States of America, Plaintiff—Appellee, versus Enrique Ochoa-Galindo, Defendant—Appellant. ______________________________ Appeals from the United States District Court for the Western District of Texas USDC Nos. 4:19-CR-614-1, 4:24-CR-144-1 ______________________________ Before Richman, Douglas, and Ramirez, Circuit Judges.

Per Curiam: * Enrique Ochoa-Galindo appeals his conviction and sentence for illegal reentry into the United States, as well as the order revoking the term of supervised release he was serving at the time of the offense. Regarding the illegal reentry offense, he argues that 8 U.S.C. § 1326(b) is unconstitutional _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 24-50753 Document: 57-1 Page: 2 Date Filed: 04/02/2025

No. 24-50753 c/w No. 24-50754 because it allows a sentence above the otherwise applicable statutory maximum established by § 1326(a) based on facts that are neither alleged in the indictment nor found by a jury beyond a reasonable doubt. Because Ochoa-Galindo does not address the revocation or the revocation sentence, he has abandoned any challenge to them. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

Ochoa-Galindo acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but seeks to preserve it for possible Supreme Court review. The Government has moved for summary affirmance or, alternatively, for an extension of time to file its brief.

This court has held that subsequent Supreme Court decisions such as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000), did not overrule 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’” (quoting Alleyne, 570 U.S. at 111 n.1)). Accordingly, Ochoa- Galindo is correct that his argument is foreclosed. Because the Government’s position “is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case,” summary affirmance is appropriate. Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). * * * Accordingly, the motion for summary affirmance is GRANTED, and the district court’s judgments are AFFIRMED. The Government’s alternative motion for an extension of time is DENIED.