United States v. Torres-Viera

Case: 25-50677 Document: 42-2 Page: 1 Date Filed: 02/18/2026

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals No. 25-50677 Fifth Circuit

Summary Calendar FILED ____________ February 18, 2026 Lyle W. Cayce United States of America, Clerk Plaintiff—Appellee, versus Jorge Enrique Torres-Viera, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 3:25-CR-485-1 ______________________________ Before Jones, Duncan, and Douglas, Circuit Judges.

Per Curiam:* Jorge Enrique Torres-Viera appeals his sentence for illegal reentry under 8 U.S.C. § 1326(a) and (b), arguing for the first time on appeal that the statutory sentencing enhancement in § 1326(b) is unconstitutional. The Government has moved for summary affirmance or, alternatively, for an extension of time in which to file a brief. Although Torres-Viera takes no _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 25-50677 Document: 42-2 Page: 2 Date Filed: 02/18/2026

No. 25-50677 position on the motion for summary affirmance, he acknowledges his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and seeks to preserve the issue for possible Supreme Court review.

Torres-Viera is correct that his 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 thus 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, its alternative motion for an extension of time is DENIED, and the judgment of the district court is AFFIRMED.