United States v. Perez-Lainez ( 2023 )

Case: 23-10581 Document: 00516983160 Page: 1 Date Filed: 11/29/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10581
Summary Calendar FILED
____________ November 29, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Ariel Perez-Lainez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:22-CR-349-1
______________________________
Before Elrod, Oldham, and Wilson, Circuit Judges.
Per Curiam: *
Ariel Perez-Lainez appeals his sentence for illegal reentry under
8 U.S.C. § 1326(a) and (b)(1), arguing that the enhancement of his sentence
under § 1326(b) is unconstitutional because it is based on facts not alleged in
the indictment and neither admitted nor proved beyond a reasonable doubt.
He concedes this argument is foreclosed by Almendarez-Torres v. United
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-10581 Document: 00516983160 Page: 2 Date Filed: 11/29/2023
No. 23-10581
States, 523 U.S. 224 (1998), but explains that he wishes to preserve it for
further review. The Government has filed an unopposed motion for
summary affirmance or, alternatively, for an extension of time in which to file
a brief.
Because Perez-Lainez is correct that his argument is foreclosed, see
United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019), summary
affirmance is 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 is
DENIED, and the judgment of the district court is AFFIRMED.
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