     Case: 19-50504      Document: 00515234038         Page: 1    Date Filed: 12/12/2019




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

                                                                                FILED
                                    No. 19-50504                        December 12, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RAUL MENDOZA-CEPEDA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:18-CR-1509-1


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Raul Mendoza-Cepeda appeals the 27-month guidelines sentence and
three-year term of supervised release imposed following his guilty plea
conviction for being found unlawfully in the United States after previous
removal. He argues that his sentence is unconstitutional because it exceeds
the maximum sentence of 18 U.S.C. § 1326(a) charged in the indictment.
However, he correctly concedes that the issue whether his eligibility for a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50504    Document: 00515234038    Page: 2   Date Filed: 12/12/2019


                                No. 19-50504

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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