     Case: 18-50250      Document: 00514641820         Page: 1    Date Filed: 09/14/2018




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

                                    No. 18-50250
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                      September 14, 2018
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

JOSE LUIS BARRAZA-CARRERA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:17-CR-875-1


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Jose Luis Barraza-Carrera appeals the sentence imposed following his
guilty plea conviction for being found unlawfully present in the United States
after previous deportation. He argues that his three-year term of supervised
release is unconstitutional because it exceeds the maximum sentence for the 8
U.S.C. § 1326(a) offense charged in the indictment. Specifically, he contends
that in order to trigger a sentencing enhancement under § 1326(b), the fact of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50250     Document: 00514641820      Page: 2   Date Filed: 09/14/2018


                                  No. 18-50250

a prior conviction must be alleged in the indictment and proven to a jury;
therefore, he asserts that § 1326(b) is unconstitutional. He correctly concedes,
however, that his argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998). See United States v. Wallace, 759 F.3d 486, 497
(5th Cir. 2014).
      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.




                                        2
