     Case: 18-10144      Document: 00514609036         Page: 1    Date Filed: 08/21/2018




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


                                    No. 18-10144                              FILED
                                  Summary Calendar                      August 21, 2018
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DAVID NINO-FLORES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-409-1


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       David Nino-Flores appeals the 27-month, within-guidelines prison term
imposed following his guilty plea conviction for illegally re-entering the United
States after removal. Raising one issue, Nino-Flores argues that his indictment
did not allege a conviction occurring before his removal and that, for this
reason, his prison term, imposed under 8 U.S.C. § 1326(b), was in excess of the
statutory maximum permitted under § 1326(a) and violated his due process


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10144     Document: 00514609036     Page: 2   Date Filed: 08/21/2018


                                  No. 18-10144

rights. The Government has filed an unopposed motion for summary
affirmance and, alternatively, seeks an extension of time to file its brief.
      As the Government argues and as Nino-Flores concedes, the only issue
raised on appeal 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).
Because the issue is foreclosed, 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, and the judgment is AFFIRMED. The Government’s alternative
motion for an extension of time to file its brief is DENIED.




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