     Case: 17-50284      Document: 00514379494         Page: 1    Date Filed: 03/09/2018




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

                                    No. 17-50284                               FILED
                                  Summary Calendar                         March 9, 2018
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE LUIS MEDINA-AVALOS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:16-CR-1108-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Jose Luis Medina-Avalos appeals the 77-month sentence imposed after
his guilty plea conviction for illegal reentry after deportation. Medina-Avalos
argues that 8 U.S.C. § 1326(b)(2) is unconstitutional because he was sentenced
based on a prior conviction that was not charged in his indictment. He reasons
that his sentence should have been no greater than the two-year statutory
maximum provided under Section 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50284    Document: 00514379494     Page: 2   Date Filed: 03/09/2018


                                 No. 17-50284

      Acknowledging that his argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998), Medina-Avalos contends that the Supreme
Court has questioned that ruling in Apprendi v. New Jersey, 530 U.S. 466
(2000), and Alleyne v. United States, 570 U.S. 99 (2013). He therefore wishes
to preserve his claim for possible future review.
      The Government has moved for summary affirmance or, alternatively,
an extension of time to file a brief. Summary affirmance is appropriate when,
among other instances, “the position of one of the parties is clearly right as a
matter of law so that there can be no substantial question as to the outcome of
the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.
1969).
      As Medina-Avalos concedes, his sole claim is foreclosed by Almendarez-
Torres. Apprendi and Alleyne did not overrule Almendarez-Torres. United
States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014); United States v. Juarez-
Duarte, 513 F.3d 204, 211 (5th Cir. 2008).
      In light of the foregoing, the Government’s motion for summary
affirmance is GRANTED, and the judgment is AFFIRMED. The Government’s
alternative motion for an extension of time to file a brief is DENIED.




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