     Case: 19-50333      Document: 00515221486         Page: 1    Date Filed: 12/03/2019




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

                                    No. 19-50333
                                                                            Fifth Circuit

                                                                          FILED
                                  Summary Calendar                 December 3, 2019
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk


              Plaintiff - Appellee

v.

GILDARDO CRUZ-RAMIREZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:18-CR-2218-1


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Gildardo Cruz-Ramirez appeals the 30-month above-guidelines sentence
and three-year term of supervised release following his guilty plea conviction
for being found unlawfully in the United States after previous deportation. He
argues that his sentence is unconstitutional because it exceeds the maximum
sentence of 8 U.S.C. § 1326(a) charged in the indictment. However, he correctly



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50333      Document: 00515221486   Page: 2   Date Filed: 12/03/2019


                                 No. 19-50333

concedes that the issue whether his eligibility for a sentencing enhancement
under § 1326(b) must be alleged in the indictment and proved to a jury 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); 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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