United States v. Zertuche-Reyna

Case: 25-11360 Document: 60-1 Page: 1 Date Filed: 06/30/2026

United States Court of Appeals for the Fifth Circuit

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United States Court of Appeals No. 25-11360 Fifth Circuit Summary Calendar FILED ____________ June 30, 2026

Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee, versus

Jose Maurillio Zertuche-Reyna,

Defendant—Appellant.

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Appeal from the United States District Court for the Northern District of Texas USDC No. 3:25-CR-61-1 ______________________________

Before King, Haynes, and Ho, Circuit Judges.

Per Curiam:*

Jose Maurillio Zertuche-Reyna appeals his sentence for illegally reentering the United States after having been removed, in violation of 8 U.S.C. § 1326. He contends that § 1326(b) is unconstitutional because it allows a sentence above the otherwise applicable statutory maximum based on facts that are neither alleged in the indictment nor found by a jury beyond Case: 25-11360 Document: 60-1 Page: 2 Date Filed: 06/30/2026

No. 25-11360 a reasonable doubt. However, he acknowledges that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and he raises this issue to preserve it for further review. The Government has moved without opposition for summary affirmance, or, alternatively, for an extension of time to file a brief.

The parties are correct that the sole argument on appeal 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). Summary affirmance is therefore 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 to file a brief is DENIED AS MOOT, and the district court’s judgment is AFFIRMED.