     Case: 10-51142     Document: 00511640025         Page: 1     Date Filed: 10/21/2011




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

                                                                            FILED
                                                                         October 21, 2011
                                     No. 10-51142
                                  Conference Calendar                      Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE DANIEL ARRIAGA-LEYVA, also known as Jose Daniel Arriaga,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:10-CR-540-1


Before BENAVIDES, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Appealing the judgment in a criminal case, Jose Daniel Arriaga-Leyva
presents an argument that he concedes is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 228, 235 (1998), which held that convictions used
to enhance a sentence under 8 U.S.C. § 1326(b)(2) need not be set forth in the
indictment. Accordingly, the Government’s motion for summary affirmance is
GRANTED, its alternative motion for an extension of time to file a brief is
DENIED, and the judgment of the district court is AFFIRMED.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
