     Case: 17-40045      Document: 00514122268         Page: 1    Date Filed: 08/18/2017




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

                                    No. 17-40045                                   FILED
                                  Summary Calendar                           August 18, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

FEDERICO ORTIZ-LOPEZ, also known as Federico Ortiz,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:16-CR-1068-1


Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
       Federico Ortiz-Lopez appeals the 37 month sentence imposed following
his conviction of being found in the United States without permission,
following removal. See 8 U.S.C. § 1326(a), (b). He contends that he was
improperly sentenced under § 1326(b) because the statute is unconstitutional
on its face. He also contends that the statute is unconstitutional as applied in




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40045    Document: 00514122268      Page: 2   Date Filed: 08/18/2017


                                No. 17-40045

his case because his prior conviction was not alleged in the indictment or
proved beyond a reasonable doubt.
     Ortiz-Lopez     acknowledges   that   his   argument     is   foreclosed   by
Almendarez-Torres v. United States, 523 U.S. 224, 228, 235 (1998), which held
that convictions used to enhance a sentence under 8 U.S.C. § 1326(b) need not
be set forth in the indictment or proved beyond a reasonable doubt.
Accordingly, the Government’s motion for summary affirmance is GRANTED,
its alternative motion for an extension of time to file a brief is DENIED, and
the judgment of the district court is AFFIRMED.




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