     Case: 19-50393      Document: 00515136335         Page: 1    Date Filed: 09/27/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 19-50393
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                  Summary Calendar                              FILED
                                                                        September 27, 2019
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff-Appellee

v.

SANDRA SUGEY CONTRERAS-TORRES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:19-CR-77-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Sandra Sugey Contreras-Torres appeals the 24-month sentence imposed
following her guilty plea conviction for being found unlawfully present in the
United States after previous deportation. She argues that her sentence was
imposed under an unconstitutional statute, 8 U.S.C. § 1326(b). Specifically,
she contends that in order to trigger a sentencing enhancement under Section
1326(b), the fact of a prior conviction must be alleged in the indictment 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50393     Document: 00515136335      Page: 2   Date Filed: 09/27/2019


                                  No. 19-50393

proven to a jury; therefore, she asserts that Section 1326(b) is unconstitutional.
She correctly concedes that her argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but raises the issue to preserve for
further possible review. 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).
      The Government has filed an unopposed motion for summary affirmance
and, alternatively, seeks an extension of time to file its brief. 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, the Government’s alternative motion for an extension of time to
file a brief is DENIED as moot, and the judgment of the district court is
AFFIRMED.




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