United States v. Varela-Angel

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 5, 2025
• Docket: 25-50001
• Status: Unpublished

Opinion

Case: 25-50001 Document: 49-1 Page: 1 Date Filed: 08/05/2025

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 25-50001 FILED August 5, 2025 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus

Jorge Armando Varela-Angel,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 7:24-CR-129-1 ______________________________

Before Smith, Higginson, and Wilson, Circuit Judges. Per Curiam: * Jorge Varela-Angel appeals following his conviction of illegal reentry in violation of 8 U.S.C. § 1326(a), contending for the first time on appeal that the statutory sentencing enhancement in § 1326(b) is unconstitutional. He concedes that his theory is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). The government has filed an unopposed motion for

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 25-50001 Document: 49-1 Page: 2 Date Filed: 08/05/2025

No. 25-50001

summary affirmance or, alternatively, for an extension of time in which to file a brief. The parties are correct that 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 convic- tion” (internal quotation marks and citation omitted)). Summary affirmance is therefore 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.