     Case: 19-51086      Document: 00515451752         Page: 1    Date Filed: 06/15/2020




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

                                                                                FILED
                                    No. 19-51086                            June 15, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE BENITEZ-CALDERON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:19-CR-163-1


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Jose Benitez-Calderon appeals his conviction and 27-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


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-51086     Document: 00515451752      Page: 2   Date Filed: 06/15/2020


                                  No. 19-51086

and proven to a 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 he raises the issue to preserve it 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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