     Case: 17-50399      Document: 00514350281        Page: 1     Date Filed: 02/16/2018




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals

                                   No. 17-50399
                                                                                Fifth Circuit


                                 Summary Calendar
                                                                              FILED
                                                                       February 16, 2018
                                                                         Lyle W. Cayce
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                Plaintiff−Appellee,

versus

JOSE DANILO CONTRERAS-MARTINEZ,

                                                Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                               No. 2:16-CR-1135-1




Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *

      Jose Contreras-Martinez appeals his 27-month sentence for illegal



      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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: 17-50399    Document: 00514350281     Page: 2   Date Filed: 02/16/2018


                                 No. 17-50399

reentry after deportation. He asserts that his indictment did not allege that
he had a prior conviction, so his sentence under 8 U.S.C. § 1326(b) violated his
due-process rights by exceeding the two-year statutory maximum in § 1326(a).

      The government has filed an unopposed motion for summary affirmance,
asserting that Almendarez-Torres v. United States, 523 U.S. 224 (1998), fore-
closes Contreras-Martinez’s position. Contreras-Martinez concedes that his
argument was rejected in Almendarez-Torres and explains that he raises it to
preserve it for further review; thus, summary affirmance is appropriate. See
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

      Accordingly, the motion for summary affirmance is GRANTED. The
judgment is AFFIRMED. The government’s alternative motion for an exten-
sion of time to file a brief is DENIED.




                                          2
