Case: 25-10731 Document: 55-1 Page: 1 Date Filed: 12/12/2025

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 25-10731 Summary Calendar FILED ____________ December 12, 2025 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Abraham Rico Vasquez, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 3:23-CR-493-1 ______________________________ Before Davis, Wilson, and Douglas, Circuit Judges.

Per Curiam: * Abraham Rico Vasquez appeals his conviction and sentence for illegal reentry into the United States under 8 U.S.C. § 1326. He argues that the recidivism enhancement in § 1326(b) is unconstitutional because it permits a sentence above the otherwise-applicable statutory maximum established by § 1326(a) based on facts that are neither alleged in the indictment nor found _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 25-10731 Document: 55-1 Page: 2 Date Filed: 12/12/2025

No. 25-10731

by a jury beyond a reasonable doubt. While Vasquez acknowledges this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), he nevertheless seeks to preserve it for possible Supreme Court review. The Government has filed an unopposed motion for summary affirmance or, alternatively, for an extension of time to file its brief.

The parties are correct that the argument is foreclosed by Almendarez- Torres. 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)). Because the Government’s position “is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case,” summary affirmance is appropriate. Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Accordingly, the motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. The Government’s alternative motion for an extension of time is DENIED.