     Case: 16-11676      Document: 00514163221         Page: 1    Date Filed: 09/20/2017




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

                                    No. 16-11676
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                        September 20, 2017
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

JOSE FRANCISCO GARCIA-PUGA, also known as Ernesto Salas-Ibarra,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CR-387-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Jose Francisco Garcia-Puga pleaded guilty to illegal reentry into the
United States and was sentenced to 45 months of imprisonment and two years
of supervised release. On appeal, he argues that his indictment did not allege
that he had a prior conviction, and therefore, it was a violation of his due
process rights for the district court to impose a sentence 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11676   Document: 00514163221    Page: 2   Date Filed: 09/20/2017


                               No. 16-11676

§ 1326(b). He contends that his sentence exceeds the statutory maximum
sentence under § 1326(a).
     The Government has filed an unopposed motion for summary affirmance
because Garcia-Puga’s argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998). As Garcia-Puga 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.          The judgment is AFFIRMED.         The
Government’s alternative motion for an extension of time to file a brief is
DENIED.




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