     Case: 20-50176      Document: 00515504663         Page: 1    Date Filed: 07/27/2020




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

                                                                                  FILED
                                    No. 20-50176                              July 27, 2020
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GERARDO FLORES-RIOJAS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:19-CR-454-1


Before CLEMENT, HIGGINSON, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Gerardo Flores-Riojas appeals the 46-month sentence imposed following
his guilty plea conviction for being found unlawfully in the United States
following a previous removal. He argues that the recidivism enhancement
under 8 U.S.C. § 1326(b) is unconstitutional because it allows a sentence above
the otherwise applicable statutory maximum based on facts that are neither
alleged in the indictment nor found by a jury beyond a reasonable doubt.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 20-50176     Document: 00515504663      Page: 2   Date Filed: 07/27/2020


                                  No. 20-50176

Flores-Riojas correctly concedes that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but he raises the
issue to preserve it for further possible review. See United States v. Wallace,
759 F.3d 486, 497 (5th Cir. 2014).
      The Government has filed an unopposed motion for summary affirmance
and, alternatively, seeks an extension of time to file its brief. Because the issue
is foreclosed, 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 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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