     Case: 17-50738      Document: 00514536708         Page: 1    Date Filed: 07/02/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                    No. 17-50738                               July 2, 2018
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

v.

ELISEO GUEVARA-GUEVARA,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:16-CR-1106-1


Before JONES, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Eliseo Guevara-Guevara pleaded guilty to illegal reentry into the United
States and was sentenced to 48 months of imprisonment and three years of
supervised release. On appeal, he argues that his indictment did not allege
that he had a prior conviction, and therefore, the district court’s sentence,
imposed under 8 U.S.C. § 1326(b) and in excess of the statutory maximum
sentence under § 1326(a), violated his due process rights.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 17-50738     Document: 00514536708      Page: 2    Date Filed: 07/02/2018


                                  No. 17-50738

      The Government has filed an unopposed motion for summary affirmance
in lieu of filing an appellate brief, or, alternatively an extension of time to file
a brief, because Guevara-Guevara’s argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998). As Guevara-Guevara concedes
that his argument is foreclosed and is raised only to preserve it for further
review, summary affirmance is appropriate.          See Groendyke Transp., Inc.
v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). Accordingly, the Government’s
motion for summary affirmance is GRANTED. The Government’s alternative
motion for an extension of time to file its brief is DENIED as unnecessary. The
district court’s judgment is AFFIRMED.




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