24-50570
5th Cir.
Mar 11, 2025

UNITED STATES OF AMERICA, Plaintiff—Appellee, versus EBLIN OMAR ARDON-AMAYA, Defendant—Appellant.

No. 24-50570

United States Court of Appeals for the Fifth Circuit

March 11, 2025

Summary Calendar

Appeal from the United States District Court for the Western District of Texas
USDC No. 2:23-CR-2801-1

Before SMITH, STEWART, and DUNCAN, Circuit Judges.

PER CURIAM:*

Eblin Ardon-Amaya appeals following his conviction of illegal reentry in violation of 8 U.S.C. § 1326, contending for the first time on appeal that the sentencing enhancement in § 1326(b) is unconstitutional. The government moves for summary affirmance or, alternatively, for an extension of time to file its brief. Ardon-Amaya takes no position on the motion but concedes that his argument is foreclosed by Almendarez-Torres v. United States,

523 U.S. 224 (1998).

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” (internal quotation marks and citation omitted)). Therefore, summary affirmance is 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 is AFFIRMED.

Notes

*
This opinion is not designated for publication. See 5TH CIR. R. 47.5.