USA v. Loreto Ramos-Pablo, No. 16-11706 (5th Cir. 2017)

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Case: 16-11706 Document: 00514102018 Page: 1 Date Filed: 08/03/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-11706 Summary Calendar United States Court of Appeals Fifth Circuit FILED August 3, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. LORETO RAMOS-PABLO, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:15-CR-134-1 Before REAVLEY, PRADO, and GRAVES, Circuit Judges. PER CURIAM: * Loreto Ramos-Pablo pleaded guilty to illegal reentry after removal from the United States and was sentenced to 41 months in prison, to be followed by a two-year term of supervised release. Ramos-Pablo argues on appeal that his indictment failed to invoke the sentencing enhancement in 8 U.S.C. § 1326(b)(2), as his indictment failed to allege the existence of a prior 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-11706 Document: 00514102018 Page: 2 Date Filed: 08/03/2017 No. 16-11706 conviction. He contends that his sentence exceeds the statutory maximum penalty for a conviction under § 1326(a) and violates his due process rights. The Government has filed an unopposed motion for summary affirmance, asserting that Ramos-Pablo’s argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). As Ramos-Pablo concedes that his argument is foreclosed and is raised only to preserve it for further review, 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 alternative motion for an extension of time to file a brief is DENIED, and the judgment of the district court is AFFIRMED. 2

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