USA v. Perez-Solis, No. 21-10902 (5th Cir. 2022)

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Case: 21-10902 Document: 00516269707 Page: 1 Date Filed: 04/06/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED April 6, 2022 No. 21-10902 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Jesus Perez-Solis, Defendant—Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 4:21-CR-97-1 Before Wiener, Dennis, and Haynes, Circuit Judges. Per Curiam:* Jesus Perez-Solis appeals his conviction and sentence for illegal reentry after deportation under 8 U.S.C. § 1326(a) and (b)(1). As he urged in the district court, Perez-Solis contends that his 51-month sentence exceeds the statutory maximum under § 1326(a) and that the indictment failed to * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 21-10902 Document: 00516269707 Page: 2 Date Filed: 04/06/2022 No. 21-10902 allege an offense punishable under § 1326(b) because it did not allege a prior conviction. He correctly concedes that these arguments are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he wishes to preserve them for further review. The Government has moved without opposition for summary affirmance or, alternatively, for an extension of time to file its brief. As the Government asserts and as Perez-Solis concedes, the issues raised on appeal are foreclosed by Almendarez-Torres. See United States v. Pervis, 937 F.3d 546, 553-54 (5th Cir. 2019); United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014). Because the Government’s position “is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case,” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), summary affirmance is proper. Accordingly, the motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. The Government’s alternative motion for an extension of time is DENIED. 2

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