Case: 16-51430 Document: 00514113505 Page: 1 Date Filed: 08/11/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-51430 FILED
Summary Calendar August 11, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ERNESTO VAZQUEZ-AMPARAN,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:16-CR-469-1
Before HIGGINBOTHAM, JONES and SMITH, Circuit Judges.
PER CURIAM: *
Ernesto Vazquez-Amparan pleaded guilty to illegal reentry into the
United States and was sentenced to 30 months of imprisonment and three
years of supervised release. 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.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-51430 Document: 00514113505 Page: 2 Date Filed: 08/11/2017
No. 16-51430
§ 1326(b). He contends that his sentence exceeds the statutory maximum
sentence under § 1326(a).
The Government has filed an unopposed motion for summary affirmance
because Vazquez-Amparan’s argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998). As Vazquez-Amparan 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.
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