     Case: 18-50884      Document: 00514894887        Page: 1     Date Filed: 03/29/2019




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

                                   No. 18-50884                             FILED
                                 Summary Calendar                      March 29, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk

UNITED STATES OF AMERICA,

                                                Plaintiff−Appellee,
versus

PERFECTO MALDONADO, also known as Fernando Farjardo Solorzano,
also known as Perfecto Morales Maldonado,
also known as Perfect Maldonado-Moraks, also known as Pepe Maldonado,
also known as Perfecto Maldonado-Morales,

                                                Defendant−Appellant.



                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 1:18-CR-278-1




Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *

      Perfecto Maldonado appeals the within-guidelines sentence of 21 months



      * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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: 18-50884     Document: 00514894887      Page: 2    Date Filed: 03/29/2019


                                  No. 18-50884

that he received for illegal reentry in violation of 8 U.S.C. § 1326. He chal-
lenges that sentence as unconstitutional because it exceeds the statutory maxi-
mum in § 1326(a) and because the conviction used to increase the sentence
under § 1326(b)(2) was not alleged in the indictment. Maldonado concedes that
this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224, 235, 239 (1998). E.g., United States v. Wallace, 759 F.3d 486, 497 (5th Cir.
2014); United States v. Pineda-Arrellano, 492 F.3d 624, 625-26 (5th Cir. 2007).
He seeks to preserve the issue for possible Supreme Court review.

      The government moves for summary affirmance or, alternatively, for an
extension of time to file its brief. Because the sole issue presented 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, its alternative motion for an extension of
time to file a brief is DENIED, and the judgment is AFFIRMED.




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