*1 Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: [*]
Miguel Angel Gutierrez pleaded guilty to illegally reentering the United States after he had been removed and received a 46-month prison sentence to be followed by three years of supervised release. On appeal, Gutierrez argues that the district court violated his right to due process by imposing a prison term greater than the two-year maximum sentence authorized under 8 U.S.C. *2 Case: 16-11795 Document: 00514218467 Page: 2 Date Filed: 10/31/2017
No. 16-11795
§ 1326(a) because his indictment did not allege that he had a prior conviction permitting a higher sentence under § 1326(b).
The Government has filed an unopposed motion for summary affirmance, asserting that Almendarez-Torres v. United States , 523 U.S. 224 (1998), forecloses Gutierrez’s argument. Gutierrez concedes that his argument is foreclosed and explains that he raises it only to preserve it for further review; thus, 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 judgment is AFFIRMED. The Government’s alternative motion for an extension of time to file a brief is DENIED.
2
[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.