United States v. Ambrosio-Vail

Case: 24-50795 Document: 61-1 Page: 1 Date Filed: 06/20/2025

United States Court of Appeals for the Fifth Circuit

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United States Court of Appeals

Fifth Circuit

No. 24-50795 consolidated with FILED

No. 24-50797 June 20, 2025 Summary Calendar Lyle W. Cayce _____________ Clerk

United States of America,

Plaintiff—Appellee, versus

Ezequiel Ambrosio-Vail,

Defendant—Appellant.

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Appeals from the United States District Court for the Western District of Texas USDC Nos. 2:23-CR-1834-1, 2:23-CR-2023-1

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Before Graves, Willett, and Wilson, Circuit Judges.

Per Curiam: *

Ezequiel Ambrosio-Vail appeals his 2024 conviction and sentence for illegal reentry under 8 U.S.C. § 1326. He received an enhanced sentence under § 1326(b) based on a prior felony conviction that led to his removal. Case: 24-50795 Document: 61-1 Page: 2 Date Filed: 06/20/2025

24-50795 c/w No. 24-50797

This appeal has been consolidated with his appeal from the revocation of supervised release tied to a prior conviction.

As for the illegal-reentry conviction, Ambrosio-Vail raises a single argument: that § 1326(b)’s sentencing enhancement is unconstitutional because it allows a sentence above the statutory maximum in § 1326(a) based on a prior conviction that wasn’t alleged in the indictment or found by a jury beyond a reasonable doubt. But this argument is both new and foreclosed. Almendarez-Torres v. United States, 523 U.S. 224 (1998), squarely holds that the fact of a prior conviction need not be charged or proved to a jury. See also United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019); Erlinger v. United States, 602 U.S. 821, 838 (2024).

Ambrosio-Vail, for his part, acknowledges as much. He takes no position on the Government’s motion for summary affirmance and concedes that Almendarez-Torres forecloses his claim. And he has offered no argument—briefed or otherwise—regarding the consolidated appeal from the supervised-release revocation.

Accordingly, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

We GRANT the Government’s motion for summary affirmance, DENY as moot its alternative motion for an extension of time, and AFFIRM the judgment of conviction and the order of revocation.