     Case: 17-50963      Document: 00514502122         Page: 1    Date Filed: 06/06/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 17-50963
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                           June 6, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

JAVIER VEGA-OROZCO, also known as Javier Orozco Vega, also known as
Javier Vega Orozco, also known as Javier Orozco-Vega,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:17-CR-247-1


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
       Javier Vega-Orozco, represented by the Federal Public Defender,
appeals his within-guidelines sentence for illegal reentry after removal from
the United States, in violation of 8 U.S.C. § 1326(a), (b)(1). On appeal, Vega-
Orozco challenges the Supreme Court’s ruling in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), arguing that his sentence pursuant to § 1326(b)(1)



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50963    Document: 00514502122    Page: 2   Date Filed: 06/06/2018


                                No. 17-50963

is unconstitutional. Seeking to preserve the issue for possible review by the
Supreme Court, he correctly concedes that his argument is foreclosed. See
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). In Almendarez-Torres,
the Supreme Court held that for the purposes of a statutory sentencing
enhancement, a prior conviction is not a fact that must be alleged in the
indictment or found by a jury beyond a reasonable doubt. 523 U.S. at 239-47.
      The Government has filed an unopposed motion for summary
affirmance.    Because Vega-Orozco’s argument 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 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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