United States v. Hernandez-Avila

Case: 25-50641 Document: 58-1 Page: 1 Date Filed: 03/16/2026

United States Court of Appeals for the Fifth Circuit _____________ United States Court of Appeals Fifth Circuit No. 25-50641 consolidated with FILED No. 25-50645 March 16, 2026 Summary Calendar Lyle W. Cayce _____________ Clerk United States of America, Plaintiff—Appellee, versus Edmundo Hernandez-Avila, Defendant—Appellant. ______________________________ Appeals from the United States District Court for the Western District of Texas USDC Nos. 2:24-CR-42-1, 2:21-CR-2210-1 ______________________________ Before Smith, Higginson, and Wilson, Circuit Judges.

Per Curiam: * Edmundo Hernandez-Avila appeals following (i) his conviction and sentence under 8 U.S.C. § 1326(a), (b)(1) for illegal reentry into the United States (No. 25-50641) and (ii) the revocation of his term of supervised release and imposition of a sentence (No. 25-50645). Regarding his new conviction, _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 25-50641 Document: 58-1 Page: 2 Date Filed: 03/16/2026

No. 25-50641 c/w No. 25-50645 Hernandez-Avila argues that the statutory sentencing enhancement in § 1326(b) is unconstitutional. He does not raise any issue related to the revocation.

Hernandez-Avila concedes that his only argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and he seeks to pre- serve it for possible Supreme Court review. The government moves for sum- mary affirmance or, alternatively, for an extension of time to file its brief.

As Hernandez-Avila concedes, 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 con- viction” (internal quotation marks and citation omitted)). Summary affirm- ance is thus appropriate. Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Accordingly, the motion for summary affirmance is GRANTED, the alternative motion for an extension of time is DENIED, and the judgments are AFFIRMED.