Case: 24-50950 Document: 45-1 Page: 1 Date Filed: 06/24/2025

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 24-50950 FILED Summary Calendar June 24, 2025 ____________ Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus David Gamboa-Herrera, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 3:24-CR-1252-1 ______________________________ Before Jones, Dennis, and Southwick, Circuit Judges.

Per Curiam: * David Gamboa-Herrera appeals the sentence imposed following his guilty plea conviction for illegal reentry in violation of 8 U.S.C. § 1326. For the first time on appeal, he 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 under § 1326(a) based on a prior _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 24-50950 Document: 45-1 Page: 2 Date Filed: 06/24/2025

No. 24-50950

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). He raises this issue to preserve it for further review. The Government has filed a motion for summary affirmance or, alternatively, for an extension of time to file a brief. Gamboa- Herrera takes no position on the Government’s motion.

Because summary affirmance is appropriate, 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 AS MOOT, and the district court’s judgment is AFFIRMED.