Case: 17-10377 Document: 00514320621 Page: 1 Date Filed: 01/24/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-10377
Fifth Circuit
FILED
Summary Calendar January 24, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
JUAN VIRAMONTES-SANCHEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-257-1
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
Juan Viramontes-Sanchez appeals his sentence of 10 months of
imprisonment and three years of supervised release for illegal reentry after
removal. On appeal, he argues that his indictment did not allege that he had
a prior conviction, and therefore, it was a violation of his due process rights for
the district court to impose a sentence under 8 U.S.C. § 1326(b). He contends
that his sentence exceeds the statutory maximum punishment under § 1326(a).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10377 Document: 00514320621 Page: 2 Date Filed: 01/24/2018
No. 17-10377
The Government has filed an unopposed motion for summary
affirmance, asserting that Almendarez-Torres v. United States, 523 U.S. 224
(1998), forecloses Viramontes-Sanchez’s argument. Viramontes-Sanchez
concedes that his argument is foreclosed and explains that he raises it only to
preserve it for further review; thus, 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. The judgment is AFFIRMED. The Government’s alternative
motion for an extension of time to file a brief is DENIED.
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