     Case: 17-11281      Document: 00514519379         Page: 1    Date Filed: 06/19/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 17-11281
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                          June 19, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

FORTINO PIMENTEL-SOTO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-274-1


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
       Fortino Pimentel-Soto, represented by the Federal Public Defender,
appeals his within-guidelines, 30-month sentence for illegal reentry after
removal from the United States, in violation of 8 U.S.C. § 1326(a), (b)(2). On
appeal, he argues for the first time that his indictment did not allege that he
had a prior conviction and, therefore, his sentence under § 1326(b)(2) violates
due process because it exceeds the statutory maximum sentence under


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-11281     Document: 00514519379    Page: 2   Date Filed: 06/19/2018


                                 No. 17-11281

§ 1326(a).    Seeking to preserve the issue for further review, he correctly
concedes that his argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 226-28, 235 (1998), in which the Supreme Court held that
convictions used to enhance a sentence under § 1326(b) need not be set forth
in the indictment.
      The Government has filed an unopposed motion for summary
affirmance.     As Pimentel-Soto correctly concedes that his argument is
foreclosed and is raised only to preserve it for further review, 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 a brief is
DENIED.




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