     Case: 17-11487      Document: 00514509197         Page: 1    Date Filed: 06/12/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                      United States Court of Appeals

                                    No. 17-11487
                                                                               Fifth Circuit

                                                                             FILED
                                  Summary Calendar                       June 12, 2018
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk


                                                 Plaintiff-Appellee

v.

HERIBERTO GARCIA-HERNANDEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-161-1


Before DAVIS, COSTA, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Heriberto Garcia-Hernandez appeals the two-year term of supervised
release imposed following his guilty plea conviction for being found unlawfully
present in the United States after previous deportation. He argues that his
sentence is unconstitutional because it exceeds the maximum sentence for the
18 U.S.C. § 1326(a) offense charged in the indictment. Specifically, he contends
that in order to trigger a sentencing enhancement under § 1326(b), the fact of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-11487    Document: 00514509197    Page: 2   Date Filed: 06/12/2018


                                No. 17-11487

a prior conviction must be alleged in the indictment and proved to a jury. He
correctly concedes, however, that his argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998). See United States v. Wallace, 759
F.3d 486, 497 (5th Cir. 2014). Thus, summary affirmance is appropriate.
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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