Case: 19-50333 Document: 00515221486 Page: 1 Date Filed: 12/03/2019

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 19-50333 Fifth Circuit FILED Summary Calendar December 3, 2019 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk

Plaintiff - Appellee v. GILDARDO CRUZ-RAMIREZ, Defendant - Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:18-CR-2218-1

Before SMITH, DENNIS, and DUNCAN, Circuit Judges.

PER CURIAM:* Gildardo Cruz-Ramirez appeals the 30-month above-guidelines sentence and three-year term of supervised release following his guilty plea conviction for being found unlawfully in the United States after previous deportation. He argues that his sentence is unconstitutional because it exceeds the maximum sentence of 8 U.S.C. § 1326(a) charged in the indictment. However, he correctly

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 19-50333 Document: 00515221486 Page: 2 Date Filed: 12/03/2019

No. 19-50333 concedes that the issue whether his eligibility for a sentencing enhancement under § 1326(b) must be alleged in the indictment and proved to a jury is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (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). Thus, summary affirmance is appropriate. Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

Accordingly, the Government’s motion for summary affirmance is GRANTED, the Government’s alternative motion for an extension of time to file a brief is DENIED, and the judgment of the district court is AFFIRMED.