     Case: 17-10369      Document: 00514385698         Page: 1    Date Filed: 03/14/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-10369
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                  Summary Calendar                              FILED
                                                                          March 14, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff–Appellee,

v.

ERIC DANIEL CORREA-CAMBRON,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 2:16-CR-17-1


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Eric Daniel Correa-Cambron appeals the 46-month within-guidelines
sentence and three-year term of supervised release imposed following his
guilty plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326(a),
(b)(2). He argues that his sentence violates due process because it exceeds the
statutory maximum sentence allowed by § 1326(a). He concedes that the issue
of whether his eligibility for a sentencing enhancement under § 1326(b) must


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10369    Document: 00514385698     Page: 2   Date Filed: 03/14/2018


                                 No. 17-10369

be alleged in the indictment and proved to a jury is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998). However, he seeks to preserve
the issue for possible Supreme Court review because, he argues, subsequent
Supreme Court decisions indicate that the Court may reconsider this issue.
      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, 1162-63 (5th Cir.
1969). In Almendarez-Torres, the Supreme Court held that, for purposes of a
statutory sentencing enhancement, a prior conviction is not a fact that must
be alleged in an indictment or found by a jury beyond a reasonable doubt. 523
U.S. at 239-47. This court has held that subsequent Supreme Court decisions
did not overrule Almendarez-Torres. 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). Thus, Correa-Cambron’s argument is foreclosed.
      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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