USA v. Facundo Ruiz-Ruiz, No. 18-50360 (5th Cir. 2018)

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Case: 18-50360 Document: 00514703205 Page: 1 Date Filed: 10/30/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 18-50360 Summary Calendar United States Court of Appeals Fifth Circuit FILED October 30, 2018 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff-Appellee v. FACUNDO RUIZ-RUIZ, also known as Javier Hernandez-Perez, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:17-CR-1114-1 Before REAVLEY, JONES, and HIGGINSON, Circuit Judges. PER CURIAM: * Facundo Ruiz-Ruiz appeals the within-Guidelines sentence of 57 months of imprisonment that he received after his guilty plea for illegal reentry, 8 U.S.C. § 1326. He challenges this sentence as unconstitutional because it exceeds the statutory maximum contained in § 1326(a), and the two prior convictions used to increase his sentence under § 1326(b)(2) were not alleged in the indictment or included in the stipulated factual basis that he signed. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 18-50360 Document: 00514703205 Page: 2 Date Filed: 10/30/2018 No. 18-50360 Ruiz-Ruiz concedes this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 239 (1998). E.g., 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). He seeks to preserve the issue for possible Supreme Court review. The Government has moved for summary affirmance or alternatively, an extension of time to file a brief. Because the sole issue presented 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, 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. 2

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