United States v. Nunez-Cardenas

Case: 24-50293 Document: 63-1 Page: 1 Date Filed: 04/14/2025

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 24-50293

FILED April 14, 2025 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee, versus

Hector Manuel Nunez-Cardenas,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 2:22-CR-206-1 ______________________________

Before Wiener, Ho, and Ramirez, Circuit Judges.

Per Curiam: *

Defendant-Appellant Hector Manuel Nunez-Cardenas 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. He concedes this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and Case: 24-50293 Document: 63-1 Page: 2 Date Filed: 04/14/2025

No. 24-50293 the Government has filed an unopposed motion for summary affirmance or, alternatively, for an extension of time in which to file a brief.

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.