United States v. Jose Conejo-Rodriguez

Case: 16-11408 Document: 00514022205 Page: 1 Date Filed: 06/06/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 16-11408 FILED Summary Calendar June 6, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE CONEJO-RODRIGUEZ, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:16-CR-73-1 Before JONES, WIENER, and CLEMENT, Circuit Judges. PER CURIAM: * Jose Conejo-Rodriguez pleaded guilty to being found unlawfully present in the United States and was sentenced to a term of imprisonment of 20 months to be followed by a three-year term of supervised release. On appeal, he argues that his indictment did not allege that he had a prior conviction and, therefore, he should have been sentenced under 8 U.S.C. § 1326(a). He contends that the district court exceeded the statutory maximum penalty by * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-11408 Document: 00514022205 Page: 2 Date Filed: 06/06/2017 No. 16-11408 imposing a three-year term of supervised release under § 1326(b)(1) and, thus, violated his due process rights. The Government has filed an unopposed motion for summary affirmance, because Conejo-Rodriguez’s argument is foreclosed by Almendarez- Torres v. United States, 523 U.S. 224 (1998). As Conejo-Rodriguez concedes that his argument is foreclosed and is raised only to preserve it for further review, a 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. 2