     Case: 17-50156      Document: 00514283331         Page: 1    Date Filed: 12/21/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 17-50156
                                                                                  Fifth Circuit


                                  Summary Calendar
                                                                                FILED
                                                                        December 21, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff-Appellee

v.

MARTIN BARCENAS-PATINO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:16-CR-567-1


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Martin Barcenas-Patino appeals his sentence of 48 months of
imprisonment and three years of supervised release for illegal reentry after
deportation. He argues that the district court erroneously determined that his
sentence was subject to an enhancement under 8 U.S.C. § 1326(b). He asserts
that his indictment did not allege that he had a prior conviction and that,




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50156    Document: 00514283331    Page: 2   Date Filed: 12/21/2017


                                No. 17-50156

therefore, the enhancement violated his due process rights because his
sentence exceeded the statutory maximum.
      The Government has filed an unopposed motion for summary
affirmance, asserting that Almendarez-Torres v. United States, 523 U.S. 224
(1998), forecloses Barcenas-Patino’s argument. Barcenas-Patino 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 Government’s motion for summary affirmance is
GRANTED. The judgment is AFFIRMED. The Government’s alternative
motion for an extension of time to file a brief is DENIED.




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