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United States Court of Appeals, Fifth Circuit.

UNITED STATES of America, Plaintiff-Appellee v. David NINO-FLORES, Defendant-Appellant

No. 18-10144

Decided: August 21, 2018

Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges. James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee Brandon Elliott Beck, Federal Public Defender's Office, Northern District of Texas, Lubbock, TX, for Defendant-Appellant

David Nino-Flores appeals the 27-month, within-guidelines prison term imposed following his guilty plea conviction for illegally re-entering the United States after removal. Raising one issue, Nino-Flores argues that his indictment did not allege a conviction occurring before his removal and that, for this reason, his prison term, imposed under 8 U.S.C. § 1326(b), was in excess of the statutory maximum permitted under § 1326(a) and violated his due process rights. The Government has filed an unopposed motion for summary affirmance and, alternatively, seeks an extension of time to file its brief.

As the Government argues and as Nino-Flores concedes, the only issue raised on appeal is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). 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). Because the issue is foreclosed, 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 is AFFIRMED. The Government’s alternative motion for an extension of time to file its brief is DENIED.



PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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