United States v. Nabor-Hernandez

Case: 25-50189 Document: 47-1 Page: 1 Date Filed: 09/12/2025

United States Court of Appeals for the Fifth Circuit United States Court of Appeals ____________ Fifth Circuit FILED No. 25-50189 September 12, 2025 Summary Calendar Lyle W. Cayce ____________ Clerk United States of America,

Plaintiff—Appellee, versus

Alfredo Nabor-Hernandez,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 2:24-CR-642-1 ______________________________

Before Higginbotham, Engelhardt, and Ramirez, Circuit Judges.

Per Curiam: *

Alfredo Nabor-Hernandez 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 Case: 25-50189 Document: 47-1 Page: 2 Date Filed: 09/12/2025

No. 25-50189 for summary affirmance or, alternatively, for an extension of time to file a merits brief.

The parties are correct that the sole argument that Nabor-Hernandez raises on appeal is foreclosed. See United States v. Pervis, 937 F.3d 546, 553- (5th Cir. 2019); see also Erlinger v. United States, 602 U.S. 821, 838 (2024) (stating 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). Thus, the Government’s motion for summary affirmance is GRANTED. The Government’s alternative motion for an extension of time is DENIED. The judgment of the district court is AFFIRMED.