Case: 24-50735 Document: 54-1 Page: 1 Date Filed: 05/19/2025

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

No. 24-50735 FILED May 19, 2025 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Jose Guadalupe Marquez-Floriano, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 2:23-CR-2982-1 ______________________________ Before Richman, Douglas, and Ramirez, Circuit Judges.

Per Curiam:* Jose Guadalupe Marquez-Floriano appeals the sentence imposed following his guilty plea conviction for illegal reentry in violation of 8 U.S.C. § 1326. Marquez-Floriano challenges the application of the enhanced penalty range in § 1326(b) as unconstitutional because it permits a defendant to be sentenced above the statutory maximum of § 1326(a) based on a prior _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 24-50735 Document: 54-1 Page: 2 Date Filed: 05/19/2025

No. 24-50735

conviction that was not alleged in the indictment or found by a jury beyond a reasonable doubt. As he correctly concedes, this 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); 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 v. United States, 570 U.S. 99, 111 n.1 (2013))).

He raises this issue to preserve it for further review. The Government has filed an unopposed motion for summary affirmance or, alternatively, for an extension of time to file a brief.

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 judgment is AFFIRMED.