Opinion
No. 17-50399
02-16-2018
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOSE DANILO CONTRERAS-MARTINEZ, Defendant-Appellant.
Summary Calendar Appeal from the United States District Court for the Western District of Texas
No. 2:16-CR-1135-1 Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges. PER CURIAM:
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. --------
Jose Contreras-Martinez appeals his 27-month sentence for illegal reentry after deportation. He asserts that his indictment did not allege that he had a prior conviction, so his sentence under 8 U.S.C. § 1326(b) violated his due-process rights by exceeding the two-year statutory maximum in § 1326(a).
The government has filed an unopposed motion for summary affirmance, asserting that Almendarez-Torres v. United States, 523 U.S. 224 (1998), forecloses Contreras-Martinez's position. Contreras-Martinez concedes that his argument was rejected in Almendarez-Torres and explains that he raises it to preserve it for further review; thus, summary affirmance is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
Accordingly, the 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.