United States v. Cuellar-Lopez

Case: 26-50062 Document: 44-1 Page: 1 Date Filed: 06/18/2026

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 26-50062 FILED Summary Calendar June 18, 2026 ____________ Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Carlos Cuellar-Lopez, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 3:25-CR-2313-1 ______________________________ Before King, Stewart, and Ho, Circuit Judges.

Per Curiam: * Carlos Cuellar-Lopez appeals following his conviction and sentence for illegal reentry under 8 U.S.C. § 1326(a) and (b), arguing for the first time that the recidivism 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 Cuellar-Lopez takes no _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 26-50062 Document: 44-1 Page: 2 Date Filed: 06/18/2026

No. 26-50062 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.

The parties are correct that Cuellar-Lopez’s sole 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, the alternative motion for an extension of time is DENIED AS MOOT, and the judgment of the district court is AFFIRMED.