United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 23-50866 

____________ 

United States of America, 

Plaintiff—Appellee, 

versus

Elauterio Aguilar-Torres, 

Defendant—Appellant. 

______________________________ 

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 4:23-CR-272-1 

______________________________ 

Before Jones, Willett, and Engelhardt, Circuit Judges.

Per Curiam: 

Elauterio Aguilar-Torres appeals his conviction and sentence for 

illegal reentry after removal. He argues that 8 U.S.C. § 1326(b) is 

unconstitutional because it allows a sentence above the otherwise applicable 

statutory maximum established by § 1326(a) based on facts that are neither 

alleged in the indictment nor found by a jury beyond a reasonable doubt. 

Aguilar-Torres has filed an unopposed motion for summary 

disposition and a letter brief correctly conceding that the only issue he raises 

is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). See 

United States Court of Appeals 

Fifth Circuit 

FILED 

September 9, 2024 

Lyle W. Cayce 

Clerk

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United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019). He explains that 

he has raised the issue to preserve it for possible further review. However, 

unlike our usual cases1

 concerning preserved challenges to AlmendarezTorres, the defendant-appellant, rather than the Government, has moved to 

summarily dispose of his own case. Where the parties “affirmatively desire 

the same result”—here, both the Government and Aguilar-Torres agree 

affirming the district court is the appropriate outcome—there is no case or 

controversy for our court to adjudicate. Bullard v. Estelle, 708 F.2d 1020, 

1023 (5th Cir. 1983) (citation omitted). This unusual procedural posture, 

wherein the appellant affirmatively acts to procure a result which defeats his 

interest, fully consistent with his opponent’s position, leaves nothing for this 

Court to decide. Given the lack of adversity between the parties, and where 

the defendant-appellant has moved for summary affirmance against his own 

_____________________ 

1

 When controlling jurisprudence forecloses the defendant’s argument, the 

defendant usually embarks on an appellate journey that preserves the argument and

adversity. The defendant notices an appeal and offers his argument for reversal while 

acknowledging existing precedent. This quest for reversal forces his opponent—the 

Government—to respond. In so doing, the defendant engages in the battle Article III 

requires. Issue is joined. 

The Government frequently responds with a motion for summary affirmance. And 

where the defendant-appellant concedes that the argument is presently foreclosed under 

controlling jurisprudence, he declines, as he must, to oppose. But because this saga 

preserves the requisite continuing controversy between two adverse parties, we have 

frequently granted the Government’s responsive, unopposed motions for summary 

affirmance. See, e.g., United States v. Zeno, No. 22-30112, 2023 WL 2423158, at *1 (5th Cir. 

Mar. 9, 2023); United States v. Salazar, No. 21-50547, 2022 WL 118421, at *1 (5th Cir. Jan. 

11, 2022). 

Here, the defendant-appellant sought an impermissible shortcut. He appealed and 

donned the posture of his opponent, asking this court for summary affirmance of his own 

conviction. In procedurally joining forces with the Government, he (undoubtedly 

inadvertently) destroyed adversity, and with it, our jurisdiction. Article III does not permit 

us to grant a fast pass to the Supreme Court where true adversity no longer exists. 

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interest, we must dismiss for lack of jurisdiction. See Pool v. City of Houston, 

87 F.4th 733, 734 (5th Cir. 2023). 

Accordingly, Aguilar-Torres’s motion for summary affirmance is 

moot, and his appeal is DISMISSED. 

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No. 23-50866

Don R. Willett, Circuit Judge, dissenting:

Without soliciting input from the parties on the issue, the majority 

stakes out a position contrary to our many opinions (albeit unpublished and 

thus nonprecedential) and dismisses this case for lack of jurisdiction.1

 The 

reason, it says, is that the defendant (as opposed to the Government) has 

moved for summary affirmance of the district court’s judgment. Both parties 

“affirmatively seek the same result,” the majority explains, and therefore 

“the lack of adversity” means that there is no Article III case or controversy 

before us.2 

This reasoning has some intuitive appeal, but it is unclear to me, at 

least without further briefing, that it is correct. We have previously resolved 

cases, and thus saw no apparent “lack of adversity,” when the parties 

disagreed on the merits of the underlying claims but nonetheless agreed that 

the district court erred and should be reversed.3

 If no justiciability issue arises 

in that context, I am doubtful it arises in the mirror-image case, in which the 

parties disagree on the merits but agree that the district court should be 

affirmed.4 It is thus distinctly possible, in my view, that the majority’s 

1 See, e.g., United States v. Lopez-Cristobal, No. 22-50985, 2023 WL 2808459, at *1 

(5th Cir. Apr. 6, 2023); United States v. Rosales-Sanchez, No. 21-50598, 2021 WL 7210419, 

at *1 (5th Cir. Dec. 8, 2021); United States v. Jimenez-Maria, 2024 WL 2151709, at *1 (5th 

Cir. May 14, 2024). 

2 Ante, at 2. 

3 See, e.g., Greinstein v. Granite Serv. Int’l, 2024 WL 3771455, at **1–2 (5th Cir. 

Aug. 13, 2024) (resolving a case in which the “district court accepted neither party’s 

argument” and “[b]oth parties agree[d] that [one of our recent decisions] resolves the key 

question” on appeal and that the district court should be reversed); United States v. Kelly, 

40 F.4th 250, 253 (5th Cir. 2022) (noting that “both parties agree” that the district court 

erred and declining the Government’s invitation to affirm on different grounds). 

4

 That the parties here disagree on the merits is a plausible distinction between this 

case and Pool v. City of Houston, 87 F.4th 733, 734 (5th Cir. 2023) (noting that the parties 

“agree[d] on a constitutional question”). 

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dismissal is premised on a reductive conception of Article III adversity and 

hinges on immaterial distinctions. 

Indeed, I fail to see a meaningful difference between (1) conceding that 

an argument is foreclosed by controlling precedent, and (2) acquiescing in 

the only judgment that we can provide based on that concession. A party who 

has conceded that his argument cannot win is a party who has already 

accepted the fate of an adverse legal judgment. And if a party has already 

accepted that inevitability, it is a small, if not inconsequential, step for that 

party to move for that judgment himself. More concretely, I fail to see the 

difference between a defendant such as Aguilar-Torres moving for summary 

affirmance on the one hand and the Government moving for summary 

affirmance unopposed on the other. In either case, both parties accept the same 

judgment. No adversity detected. 

In a lengthy footnote, the majority acknowledges that we have not 

previously dismissed cases for lack of jurisdiction when the Government 

moves for summary affirmance unopposed,5

 even though those cases could 

just as equally be described to “lack the adversity” necessary for Article III 

adjudication. What separates those cases from this case, the majority 

explains, is that the defendants in those cases at least “offer[] [their] 

argument for reversal while acknowledging existing precedent,” thus 

engaging in the “battle Article III requires.”6 In other words, if a party offers 

a token, pro forma argument while contemporaneously waving the white flag 

of defeat, a “battle” purportedly ensues and our jurisdiction is restored. I am 

5 Ante, at 2 n.1. 

6 Ibid.

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skeptical. “The Constitution deals with substance, not shadows,”7and any

“battle” of the majority’s definition is one that is at war with itself. 

As I see it, the real Article III problem in this case is not party 

adversity, but judicial hierarchy. Aguilar-Torres forthrightly concedes, as he 

must, that his argument is foreclosed by the Supreme Court’s decision in 

Almendarez-Torres v. United States.

8

 And as an intermediate court of appeals, 

we are of course powerless to overrule it.9 In the larger context, then, the 

parties have a genuine dispute; they just agree that we are the wrong court to 

decide it. An argument to us that Supreme Court precedent should be 

overruled is therefore not only futile but misdirected. 

That reality, to my mind, hardly has jurisdictional significance. Parties 

who appeal to us will often concede that their argument is foreclosed by either 

circuit or Supreme Court precedent. And when those arguments are 

presented to a three-judge panel, as the one is here, we simply acknowledge 

the argument and reject it as a matter of stare decisis. We do not dismiss it 

for lack of jurisdiction.10 It is difficult to imagine that no Article III case or 

controversy exists for the entire lifespan of a lawsuit until it reaches our en 

banc court or the Supreme Court. Subject-matter jurisdiction must exist 

7 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 

U.S. 181, 230 (2023) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325 (1867)). 

8

 523 U.S. 224 (1998). 

9 See Bryan A. Garner, et al., The Law of Judicial Precedent 27 

(2016) (“Federal and state courts are absolutely bound by vertical precedent—those 

delivered by higher courts within the same jurisdiction.”); see also Hutto v. Davis, 454 U.S. 

370, 375 (1982) (per curiam) (“[U]nless we wish anarchy to prevail within the federal 

judicial system, a precedent of this Court must be followed by the lower federal courts[.]”). 

10 See, e.g., Braidwood Mgmt., Inc. v. Becerra, 104 F.4th 930, n.23 (5th Cir. 2024) 

(noting that the plaintiffs acknowledge that their argument is foreclosed by circuit 

precedent and rejected it as a matter of stare decisis). 

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“[a]t all stages of litigation,”11 and I cannot help but think that the majority’s

holding casts that elemental proposition into doubt. 

This is all to say that while I am far from certain that the majority’s 

disposition is correct, I am also not solidly cemented into the contrary view. 

At bottom, I am afraid that the issue is more complicated than we probably 

appreciate. There are other instances in which parties agree on the ultimate 

outcome of a dispute but over which we and the Supreme Court nevertheless 

recognize jurisdiction. The leading casebook on our jurisdiction notes a few 

examples, such as consent decrees and appeals in which the Solicitor General 

confesses error in the judgment below.12 It is not clear to me, at least at this 

juncture, whether the parties’ agreement in this case is of similar kind. But I 

would think that uncertainty would warrant, at a minimum, asking the parties 

what they think, lest we force an error of our own making. Query, too, 

whether there is a “lack of adversity”—and thus no justiciable dispute—

when no party briefs or contests the issue on which the majority now disposes 

of this appeal.13 Sua sponte decisionmaking by definition has no adversity. 

* * *

At the same time, I recognize that it is entirely possible that, even if I 

am right about all the foregoing, the court’s dismissal for lack of 

jurisdiction today may have no discernible effect on what Aguilar-Torres 

really seeks: Supreme Court review. Whether we dismiss for lack of 

jurisdiction or affirm as a matter of stare decisis could be, in reality, of no 

practical consequence for the parties or the Supreme Court. Either way, 

Aguilar-Torres can file his 

11 Uzuegbunam v. Preczewski, 141 S. Ct. 792, 796 (2021). 

12 See Richard H. Fallon, et al., Hart & Wechsler’s The 

Federal Courts and the Federal System 99 (7th ed. 2015). 

13 Cf. United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020) (“In our adversarial 

system of adjudication, we follow the principle of party presentation.”). 

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petition for certiorari, and the Supreme Court can grant it—or not. 

Nevertheless, I worry that an uninformed, and potentially incorrect, sua 

sponte assessment of our jurisdiction can have ripple effects far beyond this 

routine case. Federal courts have played fast and loose with the word 

“jurisdiction” before, and our jurisprudence has not improved because of 

it.14 I simply hope that this case will not be counted among the many others 

that have applied “the term ‘jurisdiction’ in a ‘profligate’ manner.”15

14 See, e.g., Steel Co. v. Citizens for a Better Envt., 523 U.S. 83, 90 (1998) 

(“‘Jurisdiction,’ it has been observed, ‘is a word of many, too many, meanings.’” (quoting 

United States v. Vannes, 85 F.3d 661, 663 n.2 (C.A.D.C. 1996)); Abraham Watkins Nichols 

Aziz & Stogner v. Festeryga, __ F.4th __, __, 2024 WL 3533052, at * (5th Cir. July 25, 

2024) (reluctantly following a prior panel decision that called the waiver doctrine 

“jurisdictional,” despite the many “erroneous premises” that holding rested on). 

15 Harrow v. Dep’t of Def., 601 U.S. 480, 489 n.1 (2024) (quoting Arbaugh v. Y&H 

Corp., 546 U.S. 500, 510 (2006)). 

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