     Case: 18-50360      Document: 00514703205         Page: 1    Date Filed: 10/30/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-50360                      United States Court of Appeals

                                  Summary Calendar
                                                                               Fifth Circuit

                                                                             FILED
                                                                      October 30, 2018

UNITED STATES OF AMERICA,                                               Lyle W. Cayce
                                                                             Clerk
                                                 Plaintiff-Appellee

v.

FACUNDO RUIZ-RUIZ, also known as Javier Hernandez-Perez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:17-CR-1114-1


Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Facundo Ruiz-Ruiz appeals the within-Guidelines sentence of 57 months
of imprisonment that he received after his guilty plea for illegal reentry,
8 U.S.C. § 1326. He challenges this sentence as unconstitutional because it
exceeds the statutory maximum contained in § 1326(a), and the two prior
convictions used to increase his sentence under § 1326(b)(2) were not alleged
in the indictment or included in the stipulated factual basis that he signed.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50360     Document: 00514703205     Page: 2   Date Filed: 10/30/2018


                                  No. 18-50360

Ruiz-Ruiz concedes this argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235, 239 (1998). E.g., 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).     He seeks to preserve the issue for possible
Supreme Court review.
      The Government has moved for summary affirmance or alternatively, an
extension of time to file a brief. Because the sole issue presented 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, 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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