     Case: 17-50711      Document: 00514348987         Page: 1    Date Filed: 02/15/2018




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

                                    No. 17-50711                             FILED
                                  Summary Calendar                    February 15, 2018
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RAMIRO ORTIZ-MEMBRENO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:16-CR-536-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Ramiro Ortiz-Membreno appeals the 37-month sentence imposed after
his conviction for illegal reentry after deportation. Ortiz-Membreno contends
that his indictment did not allege that he had a prior conviction and, therefore,
his sentence pursuant to 8 U.S.C. § 1326(b) violated due process by exceeding
the two-year statutory maximum provided by Section 1326(a).                                       He
acknowledges that his argument is foreclosed by Almendarez-Torres v. United


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50711    Document: 00514348987     Page: 2   Date Filed: 02/15/2018


                                 No. 17-50711

States, 523 U.S. 224 (1998), but he seeks to preserve his claim for possible
future review.
      The Government has moved for summary affirmance or, alternatively,
an extension of time to file a brief. Summary affirmance is appropriate when,
among other instances, “the position of one of the parties is clearly right as a
matter of law so that there can be no substantial question as to the outcome of
the case[.]” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162–63 (5th Cir.
1969).
      As Ortiz-Membreno concedes, his sole claim is foreclosed by Almendarez-
Torres. The Supreme Court’s subsequent decisions in Apprendi v. New Jersey,
530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013), did not
overrule Almendarez-Torres. See United States v. Juarez-Duarte, 513 F.3d
204, 211 (5th Cir. 2008); United States v. Wallace, 759 F.3d 486, 497 (5th Cir.
2014). Thus, 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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