     Case: 17-50744      Document: 00514571166         Page: 1    Date Filed: 07/25/2018




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

                                                                                FILED
                                    No. 17-50744                            July 25, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROSALIO AGUNDIS GARCIA,

                                                 Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:16-CR-1297-1


Before REAVLEY, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
       Rosalio Agundis Garcia 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). He
argues that his sentence violates due process because it exceeds the statutory
maximum sentence allowed by § 1326(a). Specifically, Agundis Garcia argues



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50744    Document: 00514571166      Page: 2   Date Filed: 07/25/2018


                                  No. 17-50744


that a prior conviction that enhances a sentence under § 1326(b) must be
alleged in the indictment and proved to a jury. He correctly concedes that his
argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224
(1998). 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). However, he
seeks to preserve the issue for possible Supreme Court review.
      The Government has moved for summary affirmance or, alternatively,
an extension of time to file a brief. Because Agundis Garcia’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 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 as moot.




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