     Case: 17-10377      Document: 00514320621         Page: 1    Date Filed: 01/24/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 17-10377
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                       January 24, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

JUAN VIRAMONTES-SANCHEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-257-1


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
       Juan Viramontes-Sanchez appeals his sentence of 10 months of
imprisonment and three years of supervised release for illegal reentry after
removal. 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. § 1326(b). He contends
that his sentence exceeds the statutory maximum punishment under § 1326(a).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10377    Document: 00514320621    Page: 2   Date Filed: 01/24/2018


                                No. 17-10377

      The Government has filed an unopposed motion for summary
affirmance, asserting that Almendarez-Torres v. United States, 523 U.S. 224
(1998), forecloses Viramontes-Sanchez’s argument.            Viramontes-Sanchez
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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