     Case: 17-50107      Document: 00514176676         Page: 1    Date Filed: 09/29/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 17-50107                                   FILED
                                  Summary Calendar                        September 29, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DENNIS ARMANDO ROSALES-ALVARADO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:16-CR-211-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Dennis Armando Rosales-Alvarado pleaded guilty to illegal reentry into
the United States and was sentenced above the advisory guidelines range to
52 months of imprisonment and three years of supervised release. In his only
argument on appeal, he asserts that because the indictment did not allege that
he had a prior felony conviction, his sentence exceeded the two-year statutory
maximum sentence set forth in 8 U.S.C. § 1326(a) and violated his due process


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50107    Document: 00514176676    Page: 2   Date Filed: 09/29/2017


                                No. 17-50107

rights. He concedes that his argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998), but states that he seeks to preserve it for
possible future review because recent decisions indicate that the Supreme
Court may reconsider the issue. See Alleyne v. United States, 133 S. Ct. 2151
(2013).
      The Government has filed a motion for summary affirmance. Summary
affirmance is proper 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 Rosales-Alvarado concedes, his due process argument is foreclosed by
Almendarez-Torres. The Supreme Court’s subsequent decisions in Apprendi v.
New Jersey, 530 U.S. 466 (2000), and Alleyne 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). Accordingly, the
Government’s motion for summary affirmance is GRANTED, and the
judgment is AFFIRMED.




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