United States v. Gaytan-Portales

Opinion

Case: 25-50947 Document: 51-1 Page: 1 Date Filed: 07/16/2026

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 25-50947 Summary Calendar FILED ____________ July 16, 2026 Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee,

versus

Arturo Gaytan-Portales,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 2:24-CR-2231-1 ______________________________

Before Higginbotham, Smith, and Ho, Circuit Judges. Per Curiam: * Arturo Gaytan-Portales appeals his conviction for illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2). Gaytan- Portales argues that the recidivism enhancement under § 1326(b) is unconstitutional because it allows a sentence above the otherwise applicable statutory maximum based on facts that were neither alleged in the indictment

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 25-50947 Document: 51-1 Page: 2 Date Filed: 07/16/2026

No. 25-50947

nor found by a jury beyond a reasonable doubt. The Government has filed a motion for summary affirmance or, alternatively, for an extension of time to file an appellate brief. The Government is correct that Gaytan-Portales’s arguments are foreclosed. See Almendarez-Torres v. United States, 523 U.S. 224 (1998); 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)). Because Almendarez-Torres is clearly dispositive, we affirm the district court’s judgment without further briefing. See United States v. Bailey, 924 F.3d 1289, 1290 (5th Cir. 2019). In light of the foregoing, the motion for summary affirmance is DENIED, the alternative motion for an extension of time is DENIED AS MOOT, and the judgment of the district court is AFFIRMED.