Case: 17-40045 Document: 00514122268 Page: 1 Date Filed: 08/18/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40045 FILED
Summary Calendar August 18, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FEDERICO ORTIZ-LOPEZ, also known as Federico Ortiz,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:16-CR-1068-1
Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
Federico Ortiz-Lopez appeals the 37 month sentence imposed following
his conviction of being found in the United States without permission,
following removal. See 8 U.S.C. § 1326(a), (b). He contends that he was
improperly sentenced under § 1326(b) because the statute is unconstitutional
on its face. He also contends that the statute is unconstitutional as applied in
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40045 Document: 00514122268 Page: 2 Date Filed: 08/18/2017
No. 17-40045
his case because his prior conviction was not alleged in the indictment or
proved beyond a reasonable doubt.
Ortiz-Lopez acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 228, 235 (1998), which held
that convictions used to enhance a sentence under 8 U.S.C. § 1326(b) need not
be set forth in the indictment or proved beyond a reasonable doubt.
Accordingly, the Government’s motion for summary affirmance is GRANTED,
its alternative motion for an extension of time to file a brief is DENIED, and
the judgment of the district court is AFFIRMED.
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