     Case: 17-51076      Document: 00514659498         Page: 1    Date Filed: 09/27/2018




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


                                    No. 17-51076
                                                                            FILED
                                                                    September 27, 2018
                                  Summary Calendar
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SANTOS ORLANDO DIAZ-MARTINEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:17-CR-1255-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Santos Orlando Diaz-Martinez appeals the 46-month within-guidelines
sentence imposed following his guilty plea conviction for illegal reentry after
deportation.     Raising one issue, Diaz-Martinez argues that because his
indictment did not specify the prior felony conviction that formed the basis of
his sentencing enhancement, his sentence, imposed under 8 U.S.C.
§ 1326(b)(1), exceeded the two-year maximum sentence under § 1326(a) and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-51076      Document: 00514659498     Page: 2   Date Filed: 09/27/2018


                                   No. 17-51076

therefore violated his due process rights.        The Government has filed an
unopposed motion for summary affirmance and, alternatively, seeks an
extension of time to file its brief.
      As the Government argues and Diaz-Martinez concedes, the only issue
raised on appeal is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224 (1998). See United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014);
United States v. Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007).
Because the issue is foreclosed, 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 and the judgment is AFFIRMED. The Government’s alternative
motion for an extension of time to file its brief is DENIED.




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