UNITED STATES OF AMERICA v. JOSE FRANCISCO GARCIA PUGA (2017)

Jose Francisco Garcia-Puga pleaded guilty to illegal reentry into the United States and was sentenced to 45 months of imprisonment and two 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. § 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 Garcia-Puga's argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). As Garcia-Puga concedes that his argument is foreclosed and is raised only to preserve it for further review, 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.

PER CURIAM:*