USA v. Jose Arriaga-Leyva, No. 10-51142 (5th Cir. 2011)

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Case: 10-51142 Document: 00511640025 Page: 1 Date Filed: 10/21/2011 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-51142 Conference Calendar October 21, 2011 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE DANIEL ARRIAGA-LEYVA, also known as Jose Daniel Arriaga, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:10-CR-540-1 Before BENAVIDES, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM:* Appealing the judgment in a criminal case, Jose Daniel Arriaga-Leyva presents an argument that he concedes is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 228, 235 (1998), which held that convictions used to enhance a sentence under 8 U.S.C. § 1326(b)(2) need not be set forth in the indictment. 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. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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