United States v. Alberto-Velasquez

Case: 24-51015 Document: 48-1 Page: 1 Date Filed: 08/27/2025

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

FILED August 27, 2025 No. 24-51015

Summary Calendar Lyle W. Cayce ____________ Clerk United States of America,

Plaintiff—Appellee, versus

Melvin Alberto-Velasquez,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 2:24-CR-1708-1 ______________________________

Before Higginbotham,Engelhardt, and Ramirez, Circuit Judges.

Per Curiam:*

Melvin Alberto-Velasquez 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 this argument is foreclosed by Almendarez- Torres v. United States, 523 U.S. 224 (1998), and the Government has filed an Case: 24-51015 Document: 48-1 Page: 2 Date Filed: 08/27/2025

No. 24-51015 unopposed motion for summary affirmance or, alternatively, for an extension of time in which to file a brief.

The parties are correct that Alberto-Velasquez’s 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 Government’s motion for summary affirmance is GRANTED, the Government’s alternative motion for an extension of time is DENIED, and the judgment of the district court is AFFIRMED.