United States v. Roman-Castorena

Case: 24-50824 Document: 40-1 Page: 1 Date Filed: 04/08/2025

United States Court of Appeals for the Fifth Circuit

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United States Court of Appeals

Fifth Circuit

No. 24-50824

Summary Calendar FILED ____________ April 8, 2025

Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee, versus

Omar Roman-Castorena,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 3:24-CR-1345-1

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Before Elrod, Chief Judge, Haynes, and Duncan, Circuit Judges.

Per Curiam: *

Omar Roman-Castorena appeals following his conviction for illegal reentry in violation of 8 U.S.C. § 1326, arguing for the first time on appeal that the statutory sentencing enhancement in § 1326(b) is unconstitutional. The Government moves for summary affirmance or, alternatively, for an extension of time in which to file a brief. Roman-Castorena takes no position Case: 24-50824 Document: 40-1 Page: 2 Date Filed: 04/08/2025

No. 24-50824 on the motion but concedes that his argument is foreclosed by Almendarez- Torres v. United States, 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 quotation marks and citation omitted)). Therefore, summary affirmance is appropriate. 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 of the district court is AFFIRMED.