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 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 cases[1] concerning preserved challenges to Almendarez-Torres, 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 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. 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input from the parties on the issue, the majority stakes out a position contrary to our many opinions (albeit unpublished and thus nonprecedential) and dismisses this case for lack of jurisdiction.1 The reason, it says, is that the defendant (as opposed to the Government) has moved for summary affirmance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 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 affirmanceunopposed 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 skeptical. “The Constitution deals with substance, not shadows,”7 and 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 “[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 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
