     Case: 16-11408      Document: 00514022205         Page: 1    Date Filed: 06/06/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 16-11408                                 FILED
                                  Summary Calendar                            June 6, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE CONEJO-RODRIGUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-73-1


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Jose Conejo-Rodriguez pleaded guilty to being found unlawfully present
in the United States and was sentenced to a term of imprisonment of 20
months to be followed by a three-year term of supervised release. On appeal,
he argues that his indictment did not allege that he had a prior conviction and,
therefore, he should have been sentenced under 8 U.S.C. § 1326(a).                              He
contends that the district court exceeded the statutory maximum penalty by


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11408    Document: 00514022205       Page: 2   Date Filed: 06/06/2017


                                   No. 16-11408

imposing a three-year term of supervised release under § 1326(b)(1) and, thus,
violated his due process rights.
      The Government has filed an unopposed motion for summary
affirmance, because Conejo-Rodriguez’s argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998). As Conejo-Rodriguez concedes
that his argument is foreclosed and is raised only to preserve it for further
review, a 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 judgment is AFFIRMED.
The Government’s alternative motion for an extension of time to file a brief is
DENIED.




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