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), (h). 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 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, 118 S.Ct. 1219, 140 L.Ed.2d 350 (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.