     Case: 16-51310      Document: 00514016223         Page: 1    Date Filed: 06/01/2017




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

                                    No. 16-51310
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                          June 1, 2017
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


                                                 Plaintiff-Appellee

v.

RAUL RODRIGUEZ-CERVANTES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:15-CR-1295-1


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
       Raul Rodriguez-Cervantes pleaded guilty to being found in the United
States after having been removed and was sentenced to 41 months in prison,
to be followed by a three-year term of supervised release. Rodriguez-Cervantes
argues on appeal that his indictment charged a violation of only 8 U.S.C.
§ 1326(a) and failed to invoke the sentencing enhancement in § 1326(b)(2). He




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-51310    Document: 00514016223     Page: 2   Date Filed: 06/01/2017


                                 No. 16-51310

contends that his sentence exceeds the statutory maximum penalty for a
conviction under § 1326(a) and violates his due process rights.
      The Government has filed an unopposed motion for summary
affirmance, because Rodriguez-Cervantes’s argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998).          As Rodriguez-
Cervantes concedes that his argument is foreclosed and is raised only to
preserve it for further review, summary judgment 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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