     Case: 18-51050      Document: 00515083793         Page: 1     Date Filed: 08/20/2019




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

                                    No. 18-51050
                                                                              Fifth Circuit

                                                                            FILED
                                  Summary Calendar                    August 20, 2019
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk


                                                 Plaintiff-Appellee

v.

RICARDO GUZMAN-NAJERA,

                                                 Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:18-CR-2390-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Ricardo Guzman-Najera appeals the 21-month, within-guidelines
sentence imposed following his guilty-plea conviction of illegal reentry in
violation of 8 U.S.C. § 1326. He argues that his sentence violates due process
because     it   exceeds    the    statutory     maximum         sentence       allowed               by
Section 1326(a). Specifically, Guzman-Najera argues that a prior conviction



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-51050    Document: 00515083793   Page: 2   Date Filed: 08/20/2019


                               No. 18-51050


that enhances a sentence under Section 1326(b) must be alleged in the
indictment and proved to a jury. He correctly concedes that his argument 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). However, he seeks to
preserve the issue for possible Supreme Court review.
      The Government has moved for summary affirmance or, alternatively,
an extension of time to file a brief. Because Guzman-Najera’s argument 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 a brief is DENIED.




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