United States v. Tello-Alvarado

Case: 25-50454 Document: 44-1 Page: 1 Date Filed: 12/17/2025

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

____________ Fifth Circuit

FILED No. 25-50454 December 17, 2025 Summary Calendar Lyle W. Cayce ____________ Clerk

United States of America,

Plaintiff—Appellee, versus

Eliseo Tello-Alvarado,

Defendant—Appellant.

______________________________

Appeal from the United States District Court for the Western District of Texas

USDC No. 7:23-CR-137-1 ______________________________

Before Dennis, Engelhardt, and Wilson, Circuit Judges.

Per Curiam:*

Eliseo Tello-Alvarado appeals his sentence following guilty-plea conviction for illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(1). He argues for the first time on appeal that the application of the enhanced penalty range in § 1326(b) is unconstitutional because it allows a sentence Case: 25-50454 Document: 44-1 Page: 2 Date Filed: 12/17/2025

No. 25-50454 above the § 1326(a) statutory maximum based on a prior conviction not alleged in the indictment or found by a jury.

He concedes that Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998), forecloses his argument. See Erlinger v. United States, 602 U.S. 821, 838 (2024). He raises the issue to preserve it for further review. The Government moves for summary affirmance or, alternatively, for an extension of time to file a brief. Tello-Alvarado takes no position on the Government’s motion.

Because summary affirmance is appropriate, see Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the Government’s motion for summary affirmance is GRANTED, its alternative motion for an extension of time is DENIED AS MOOT, and the judgment of the district court is AFFIRMED.