     Case: 17-10326      Document: 00514214513         Page: 1    Date Filed: 10/27/2017




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

                                    No. 17-10326                                 FILED
                                  Summary Calendar                        October 27, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ARMANDO RAMIREZ-HERNANDEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:16-CR-24-1


Before JONES, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Armando Ramirez-Hernandez pleaded guilty to illegal reentry and was
sentenced above the advisory guidelines range to 40 months of imprisonment
and three years of supervised release. He maintains that his guilty plea was
involuntary because he was not admonished that the prior felony provision of
8 U.S.C. § 1326(b)(1) was an element of the offense that the Government had
to prove beyond a reasonable doubt. Likewise, he argues that the enhancement


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10326    Document: 00514214513     Page: 2   Date Filed: 10/27/2017


                                 No. 17-10326

provisions of § 1326(b) are unconstitutional because they treat past convictions
as sentencing factors rather than elements of the offense; he contends that his
indictment did not allege that he had a prior conviction, and, thus, he could be
sentenced to no more than two years in prison pursuant to § 1326(a). Ramirez-
Hernandez concedes that his arguments are foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he asserts that he seeks to preserve
his claims for possible future review.
      The Government has moved for summary affirmance or, alternatively,
for an extension of time to file a brief. Summary affirmance is proper 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).
      As Ramirez-Hernandez concedes, his appellate claims are foreclosed by
Almendarez-Torres. The Supreme Court’s decisions in Apprendi v. New Jersey,
530 U.S. 466 (2000), and Alleyne v. United States, 131 S. Ct. 2151 (2013), did
not overrule Almendarez-Torres. See United States v. Juarez-Duarte, 513 F.3d
204, 211 (5th Cir. 2008); United States v. Wallace, 759 F.3d 486, 497 (5th Cir.
2014). Thus, 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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