Case: 21-50233 Document: 00516016569 Page: 1 Date Filed: 09/16/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 16, 2021
No. 21-50233
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Primitivo Parra-Robles,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:10-CR-2956-1
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Primitivo Parra-Robles appeals the 48-month, above-guidelines
sentence of imprisonment imposed following his guilty-plea conviction for
illegal reentry after removal from the United States. He contends that his
sentence is unconstitutional because his indictment alleged only those facts
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-50233 Document: 00516016569 Page: 2 Date Filed: 09/16/2021
No. 21-50233
sufficient for a conviction under 8 U.S.C. § 1326(a) and did not include any
allegations of a prior conviction necessary for the § 1326(b)(2) enhancement.
He concedes that this argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 226-27 (1998), but seeks to preserve the issue
for further review. The Government agrees and has filed an unopposed
motion for summary affirmance, and in the alternative, a motion for an
extension of time to file a brief.
The parties are correct that the sole issue is foreclosed by Almendarez-
Torres. 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). 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, and the judgment of the district court is AFFIRMED. The
Government’s alternative motion for an extension of time to file a brief is
DENIED AS MOOT.
2