     Case: 19-51142      Document: 00515413479         Page: 1    Date Filed: 05/12/2020




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

                                                                                FILED
                                    No. 19-51142                            May 12, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JCONCEPCION ALONSO-TOBAR,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:19-CR-563-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Jconcepcion Alonso-Tobar appeals the 46-month sentence imposed after
he pled guilty to being found unlawfully present in the United States after
previous removal.        He argues that his sentence was imposed under an
unconstitutional statute, 8 U.S.C. § 1326(b). Specifically, he contends that in
order to trigger a sentencing enhancement under Section 1326(b), the fact of a
prior conviction must be alleged in the indictment and proven to a jury;


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-51142     Document: 00515413479      Page: 2   Date Filed: 05/12/2020


                                  No. 19-51142

therefore, he asserts that Section 1326(b) is unconstitutional. He correctly
concedes that his argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but raises the issue to preserve it for further
possible review. 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).
      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).
      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. The judgment of the district court is AFFIRMED.




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