Case: 25-50084 Document: 48-1 Page: 1 Date Filed: 08/07/2025

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 25-50084 Summary Calendar FILED ____________ August 7, 2025 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Gabriel Escalera-Diaz, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 2:24-CR-2429-1 ______________________________ Before Elrod, Chief Judge, and Higginson and Ramirez, Circuit Judges.

Per Curiam: * Gabriel Escalera-Diaz appeals following his conviction for illegal reentry in violation of 8 U.S.C. § 1326(a), arguing for the first time on appeal that the statutory sentencing enhancement in § 1326(b) is unconstitutional.

He concedes that this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). The Government has filed an unopposed motion _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 25-50084 Document: 48-1 Page: 2 Date Filed: 08/07/2025

No. 25-50084

for summary affirmance or, in the alternative, for an extension of time to file a merits brief.

The parties are correct that 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)). Summary affirmance is therefore 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.