     Case: 19-50827      Document: 00515351605         Page: 1    Date Filed: 03/19/2020




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

                                                                                FILED
                                    No. 19-50827                          March 19, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE RICARDO MORALES-MERCADO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:19-CR-188-1


Before STEWART, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Jose Ricardo Morales-Mercado appeals the 51-month sentence imposed
following his guilty plea conviction for being found unlawfully present in the
United States after previous deportation. He argues that his sentence was
imposed under an unconstitutional statute, 8 U.S.C. § 1326(b). Specifically, he
contends that in order to trigger a sentencing enhancement under § 1326(b),
the fact of a prior conviction must be alleged in the indictment and proven to a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50827     Document: 00515351605      Page: 2   Date Filed: 03/19/2020


                                  No. 19-50827

jury; therefore, he asserts that § 1326(b) is unconstitutional. He correctly
concedes that his 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, and the judgment of the district court is AFFIRMED.




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