     Case: 18-11243      Document: 00514989513         Page: 1    Date Filed: 06/10/2019




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

                                    No. 18-11243                            FILED
                                  Summary Calendar                      June 10, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LUIS CASTANEDA-TORRES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-63-1


Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Luis Castaneda-Torres, represented by the Federal Public Defender,
appeals his above-guidelines sentence of 12 months of imprisonment and three
years of supervised release on his conviction for illegal reentry after removal
from the United States, in violation of 8 U.S.C. § 1326(a), (b)(1). On appeal, he
argues that his indictment did not allege that he had a prior conviction and,
therefore, his sentence under § 1326(b)(1) violates due process because the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11243     Document: 00514989513    Page: 2    Date Filed: 06/10/2019


                                 No. 18-11243

term of supervised release exceeds the statutory maximum sentence under
§ 1326(a).    Seeking to preserve the issue for further review, he correctly
concedes that his argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 226-28, 235, 118 S. Ct. 1219, 1222-23, 1226 (1998), in
which the Supreme Court held that convictions used to enhance a sentence
under § 1326(b) need not be set forth in the indictment.
      The Government has filed an unopposed motion for summary
affirmance.    As Castaneda-Torres correctly concedes that his argument is
foreclosed and is raised only to preserve it for further review, 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, 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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