Case: 20-50589 Document: 00515731673 Page: 1 Date Filed: 02/03/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED February 3, 2021 No. 20-50589 Lyle W. Cayce Summary Calendar Clerk

United States of America, Plaintiff—Appellee, versus Inocencio Ruiz-Trujillo, Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 1:20-CR-45-1

Before Higginbotham, Jones, and Costa, Circuit Judges.

Per Curiam:* Inocencio Ruiz-Trujillo appeals his 18-month sentence imposed following his guilty plea conviction for illegal reentry following removal. He argues that 8 U.S.C. § 1326(b) is unconstitutional, under the principles articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

Case: 20-50589 Document: 00515731673 Page: 2 Date Filed: 02/03/2021

No. 20-50589

v. United States, 570 U.S. 99 (2013), because it permits a sentence above the statutory maximum in § 1326(a) based on the fact of a prior felony conviction neither alleged in the indictment nor found by a jury beyond a reasonable doubt. He concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998), but he 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 Ruiz-Trujillo 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.