Case: 25-10609 Document: 48-1 Page: 1 Date Filed: 11/06/2025

United States Court of Appeals for the Fifth Circuit _____________ United States Court of Appeals No. 25-10609 Fifth Circuit

consolidated with FILED No. 25-10611 November 6, 2025 Summary Calendar Lyle W. Cayce _____________ Clerk United States of America, Plaintiff—Appellee, versus Horacio Baca-Rodriguez, Defendant—Appellant. ______________________________ Appeals from the United States District Court for the Northern District of Texas USDC Nos. 5:24-CR-136-1, 5:19-CR-94-1 ______________________________ Before Elrod, Chief Judge, and Smith and Stewart, Circuit Judges.

Per Curiam:* Horacio Baca-Rodriguez pleaded guilty to illegal reentry under 8 U.S.C. § 1326 and was sentenced to forty-two months of imprisonment. In addition, the district court revoked his supervised release for a prior illegal-reentry offense and sentenced him to a consecutive term of eighteen _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 25-10609 Document: 48-1 Page: 2 Date Filed: 11/06/2025

No. 25-10609 c/w No. 25-10611 months in prison. For the first time on appeal, Baca-Rodriguez argues that § 1326(b)(2) defines a separate criminal offense and that his enhanced criminal sentence is unconstitutional. He further contends that the statutory maximum for his revocation sentence should have been only one year because the original sentence for the prior illegal-reentry offense had been unconstitutionally enhanced, as well. However, he concedes that his arguments are foreclosed by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), and this court’s precedent holding that a defendant may not use an appeal of a revocation of supervised release to attack the defendant’s original sentence, see, e.g., United States v. Hinson, 429 F.3d 114, 116 (5th Cir. 2005). The Government moves for summary affirmance or, alternatively, an extension of time in which to file a brief. Baca-Rodriguez opposes neither motion.

The parties are correct that Baca-Rodriguez’s arguments are 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’” (quoting Alleyne v. United States, 570 U.S. 90, 111 n.1 (2013))); United States v. Willis, 563 F.3d 168, 170 (5th Cir. 2009) (“It is by now well-established that a defendant may not use the appeal of a revocation of supervised release to challenge an underlying conviction or original sentence.”). Thus, summary affirmance is 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 alternative motion for an extension of time to file a brief is DENIED, and the district court’s judgments are AFFIRMED.