     Case: 15-10989      Document: 00513484383         Page: 1    Date Filed: 04/28/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 15-10989                                    FILED
                                  Summary Calendar                              April 28, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JUAN JOSE GARCIA-DE LA CRUZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:15-CR-33


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Juan Jose Garcia-De La Cruz pleaded guilty to illegally reentering the
United States after deportation. He objected to the presentence report arguing
that his sentence should not have been enhanced pursuant to 8 U.S.C.
§ 1326(b). The district court overruled the objection. He received a within-
guidelines sentence of 14 months of imprisonment and a 3-year term of
supervised release.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10989     Document: 00513484383      Page: 2   Date Filed: 04/28/2016


                                  No. 15-10989

      Garcia-De La Cruz argues that his sentence should not have been
enhanced pursuant to § 1326(b) based on his commission of a felony before his
prior deportation because that felony was not pleaded in the instant indictment
and proved beyond a reasonable doubt.             He challenges the validity of
Almendarez-Torres v. United States, 523 U.S. 224 (1998), in light of Apprendi
v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 133 S. Ct.
2151 (2013). Garcia-De La Cruz concedes that his argument is foreclosed and
raises it to preserve it for further review. In its unopposed motion for summary
affirmance, the Government agrees that the issue is foreclosed and alternately
moves for an extension of time to file a brief.
      The motion for summary affirmance is GRANTED, the 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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