     Case: 16-11795      Document: 00514218467         Page: 1    Date Filed: 10/31/2017




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

                                    No. 16-11795
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                        October 31, 2017
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

MIGUEL ANGEL GUTIERREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-212-1


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Miguel Angel Gutierrez pleaded guilty to illegally reentering the United
States after he had been removed and received a 46-month prison sentence to
be followed by three years of supervised release. On appeal, Gutierrez argues
that the district court violated his right to due process by imposing a prison
term greater than the two-year maximum sentence authorized under 8 U.S.C.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11795     Document: 00514218467      Page: 2    Date Filed: 10/31/2017


                                  No. 16-11795

§ 1326(a) because his indictment did not allege that he had a prior conviction
permitting a higher sentence under § 1326(b).
      The Government has filed an unopposed motion for summary
affirmance, asserting that Almendarez-Torres v. United States, 523 U.S. 224
(1998), forecloses Gutierrez’s argument. Gutierrez concedes that his argument
is foreclosed and explains that he raises it only to preserve it for further review;
thus, 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. The judgment is AFFIRMED.
The Government’s alternative motion for an extension of time to file a brief is
DENIED.




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