United States v. Otero-Garay

Case: 26-10044 Document: 37-1 Page: 1 Date Filed: 07/27/2026

United States Court of Appeals for the Fifth Circuit

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United States Court of Appeals

Fifth Circuit

No. 26-10044

Summary Calendar FILED ____________ July 27, 2026

Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee, versus

Josue Otero-Garay,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:25-CR-113-1

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Before Higginbotham, Smith, and Ho, Circuit Judges.

Per Curiam: *

Josue Otero-Garay appeals following his conviction and sentence under 8 U.S.C. § 1326(a) for illegal reentry after removal from the United States, arguing that the sentencing enhancement in § 1326(b) is unconstitutional. Otero-Garay concedes that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and seeks to preserve the issue for further review. The Government has filed an Case: 26-10044 Document: 37-1 Page: 2 Date Filed: 07/27/2026

No. 26-10044 unopposed motion for summary affirmance or, alternatively, for an extension of time in which to file a brief.

The parties are correct that Otero-Garay’s 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 motion for summary affirmance is GRANTED, the alternative motion for extension of time is DENIED as moot, and the judgment of the district court is AFFIRMED.