     Case: 17-10522      Document: 00514370204         Page: 1    Date Filed: 03/02/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 17-10522
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                          March 2, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

RODOLFO TAFOYA, also known as Rudolfo Tapioa,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-258-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Rodolfo Tafoya appeals the 21-month within-guidelines sentence and
three-year term of supervised release imposed following his guilty plea
conviction for illegal reentry. He argues that his sentence violates due process
because it exceeds the statutory maximum sentence of 8 U.S.C. § 1326(a).
However, he correctly concedes that whether a prior conviction must be alleged
in the indictment and proved to a jury before a sentencing enhancement under
§ 1326(b) can be applied is foreclosed by Almendarez-Torres v. United States,

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10522    Document: 00514370204    Page: 2   Date Filed: 03/02/2018


                                No. 17-10522

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).
Thus, summary affirmance is appropriate. 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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