United States v. Arellano-Alvarado

Case: 25-50971 Document: 47-1 Page: 1 Date Filed: 05/14/2026

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

No. 25-50971

FILED May 14, 2026 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee, versus

Jose Cutberto Arellano-Alvarado,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 3:25-CR-1399-1 ______________________________

Before Higginbotham, Engelhardt, and Ramirez, Circuit Judges.

Per Curiam: *

Jose Cutberto Arellano-Alvarado appeals following his conviction for illegal reentry in violation of 8 U.S.C. § 1326(a), arguing on appeal that the statutory sentencing enhancement in § 1326(b) is unconstitutional. He concedes this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and the Government has filed a motion for summary Case: 25-50971 Document: 47-1 Page: 2 Date Filed: 05/14/2026

No. 25-50971 affirmance or, alternatively, for an extension of time in which to file a brief. Arellano-Alvarado takes no position on the motion.

The parties are correct that the 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” (citation modified)). Summary affirmance is therefore appropriate. See 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 judgment of the district court is AFFIRMED.