Case: 16-51310 Document: 00514016223 Page: 1 Date Filed: 06/01/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-51310
Fifth Circuit
FILED
Summary Calendar June 1, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
RAUL RODRIGUEZ-CERVANTES,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:15-CR-1295-1
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
Raul Rodriguez-Cervantes pleaded guilty to being found in the United
States after having been removed and was sentenced to 41 months in prison,
to be followed by a three-year term of supervised release. Rodriguez-Cervantes
argues on appeal that his indictment charged a violation of only 8 U.S.C.
§ 1326(a) and failed to invoke the sentencing enhancement in § 1326(b)(2). He
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-51310 Document: 00514016223 Page: 2 Date Filed: 06/01/2017
No. 16-51310
contends that his sentence exceeds the statutory maximum penalty for a
conviction under § 1326(a) and violates his due process rights.
The Government has filed an unopposed motion for summary
affirmance, because Rodriguez-Cervantes’s argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998). As Rodriguez-
Cervantes concedes that his argument is foreclosed and is raised only to
preserve it for further review, summary judgment 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.
The judgment is AFFIRMED. The Government’s alternative motion for an
extension of time to file a brief is DENIED.
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