Case: 19-50915 Document: 00515468967 Page: 1 Date Filed: 06/26/2020

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-50915 June 26, 2020 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. HILARIO RESENDIZ-TREJO, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:19-CR-1335-1

Before STEWART, HIGGINSON, and COSTA, Circuit Judges.

PER CURIAM: * Hilario Resendiz-Trejo appeals his 21-month sentence imposed following his guilty plea for illegal reentry into the United States, in violation of 8 U.S.C. § 1326. Raising one issue on appeal, Resendiz-Trejo argues that his sentence, imposed under § 1326(b)(1), violates his due process rights by exceeding the two-year statutory maximum set forth in § 1326(a) because the indictment did not allege a prior conviction necessary for the § 1326(b)(1) enhancement. He

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 19-50915 Document: 00515468967 Page: 2 Date Filed: 06/26/2020

No. 19-50915 concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998), but seeks to preserve the issue for further review. The Government filed an unopposed motion for summary affirmance agreeing that the issue is foreclosed and, in the alternative, a motion for an extension of time to file a brief.

As the Government argues, and Resendiz-Trejo concedes, the sole issue raised on appeal is foreclosed by Almendarez-Torres. 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 of the district court is AFFIRMED. The Government’s alternative motion for an extension of time to file a brief is DENIED.