     Case: 17-11137      Document: 00514439796         Page: 1    Date Filed: 04/20/2018




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

                                    No. 17-11137                           FILED
                                  Summary Calendar                     April 20, 2018
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE VILLANUEVA-CARDENAS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-164-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Jose Villanueva-Cardenas appeals his conviction for illegal reentry after
deportation and his sentence of 32 months of imprisonment and three years of
supervised release.       He argues that his sentence exceeded the statutory
maximum because the enhanced penalty provision of 8 U.S.C. § 1326(b) is
unconstitutional. He also asserts that his guilty plea was invalid because he
was not admonished that his prior felony conviction could not be used to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-11137   Document: 00514439796    Page: 2   Date Filed: 04/20/2018


                               No. 17-11137

enhance his sentence under § 1326(b) unless it was submitted to a jury and
proved beyond a reasonable doubt.
     However, Villanueva-Cardenas has filed an unopposed motion for
summary disposition and a letter brief conceding that these issues are
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and
explaining that he has raised the issues only to preserve them for possible
further review. Accordingly, because summary disposition is appropriate, see
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969),
Villanueva-Cardenas’s motion is GRANTED. The district court’s judgment is
AFFIRMED.




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