     Case: 16-10726      Document: 00513894979         Page: 1    Date Filed: 03/02/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                             United States Court of Appeals

                                    No. 16-10726
                                                                                      Fifth Circuit

                                                                                    FILED
                                  Summary Calendar                              March 2, 2017
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                 Plaintiff-Appellee

v.

MARIO MUNOZ-GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:16-CR-8-1


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Mario Munoz-Garcia pleaded guilty to one count of being illegally
present in the United States following deportation. The district court found
that Munoz-Garcia’s criminal history category was underrepresented and
imposed a 72-month sentence, above the advisory guidelines range of 46-57
months in prison, to be followed by a three-year term of supervised release. In
his only argument on appeal, Munoz-Garcia asserts that because the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10726    Document: 00513894979      Page: 2   Date Filed: 03/02/2017


                                  No. 16-10726

indictment did not allege his prior aggravated felony conviction, his sentence,
which exceeded the two-year statutory maximum set forth in 8 U.S.C.
§ 1326(a), constituted a violation of his due process rights. He concedes that
his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998), but he maintains that the reasoning of this case has been called into
question by Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United
States, 133 S. Ct. 2151 (2013).
      The Government has filed a motion for a summary affirmance or,
alternatively, for an extension of time to file a merits brief.        Summary
affirmance is proper when, among other instances, “the position of one of the
parties is clearly right as a matter of law so that there can be no substantial
question as to the outcome of the case.” Groendyke Transport, Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969).
      As Munoz-Garcia concedes, his due process argument is foreclosed by
Almendarez-Torres.     Although Apprendi and Alleyne require that facts
increasing the statutory maximum or minimum sentence must be submitted
to a jury and proved beyond a reasonable doubt, they have preserved an
exception for prior convictions. Alleyne, 133 S. Ct. at 2160-64 & n.1; Apprendi,
530 U.S. at 489-90.     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 a brief is DENIED.




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