USA v. Perez-Alvarado, No. 21-50548 (5th Cir. 2021)
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Case: 21-50548 Document: 00516106818 Page: 1 Date Filed: 11/24/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED November 24, 2021 No. 21-50548 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Walter Perez-Alvarado, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 4:20-CR-586-1 Before Davis, Jones, and Elrod, Circuit Judges. Per Curiam:* Walter Perez-Alvarado appeals his conviction and sentence for illegal reentry after removal in violation of 8 U.S.C. § 1326(a) and (b)(2). For the first time on appeal, Perez-Alvarado contends that it violates the Constitution to treat a prior conviction that increases the statutory maximum * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 21-50548 Document: 00516106818 Page: 2 Date Filed: 11/24/2021 No. 21-50548 under § 1326(b)(2) as a sentencing factor, rather than as an element of the offense. He correctly concedes that the argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he wishes to preserve it 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-Alvarado concedes, the sole issue raised on appeal is foreclosed by Almendarez-Torres. See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. PinedaArrellano, 492 F.3d 624, 625-26 (5th Cir. 2007). 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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