United States v. Pinedo-Nerio

Case: 24-50798 Document: 43-1 Page: 1 Date Filed: 07/28/2025

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

____________ Fifth Circuit

FILED No. 24-50798 July 28, 2025

Summary Calendar

Lyle W. Cayce ____________ Clerk

United States of America,

Plaintiff—Appellee, versus

Santiago Ernesto Pinedo-Nerio,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 2:23-CR-1169-1

______________________________

Before Dennis, Ho, and Oldham, Circuit Judges.

Per Curiam: *

Defendant-Appellant Santiago Ernesto Pinedo-Nerio appeals the term of imprisonment following his conviction for illegal reentry after removal in violation of 8 U.S.C. § 1326(a). He argues that the application of a statutory sentencing enhancement under § 1326(b) for a prior conviction, Case: 24-50798 Document: 43-1 Page: 2 Date Filed: 07/28/2025

No. 24-50798 without submission of the fact of the conviction to a jury, is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000).

Pinedo-Nerio concedes that the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998) forecloses his argument, and seeks to preserve this issue for further review. See 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)). The Government has filed a motion for summary affirmance or, alternatively, for an extension of time in which to file a brief. Pinedo-Nerio takes no position on the Government’s motion. Because Pinedo-Nerio’s argument is foreclosed, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

For the foregoing reasons, the Government’s 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.