PER CURIAM: ^[*]

Victor Martinez-Ramirez pleaded guilty to one count of being illegally present in the United States following deportation. The district court sentenced Martinez-Ramirez within the applicable guidelines range to 46 months of imprisonment, to be followed by a three-year term of supervised release. In his only argument on appeal, Martinez-Ramirez asserts that because the indictment did not allege his prior aggravated felony conviction, *2 Case: 16-10870 Document: 00513915851 Page: 2 Date Filed: 03/17/2017

No. 16-10870

his sentence, which exceeded the two-year statutory maximum set forth in 8 U.S.C. § 1326(a), constituted a violation of his due process rights. He concedes that his argument is foreclosed by Almendarez-Torres v. United States , 523 U.S. 224 (1998), but he maintains that the reasoning of this case has been called into question by Apprendi v. New Jersey , 530 U.S. 466 (2000), and Alleyne v. United States , 133 S. Ct. 2151 (2013).

The Government has filed a motion for a summary affirmance or, alternatively, for an extension of time to file a merits brief. Summary affirmance is proper when, among other instances, “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case.” Groendyke Transp., Inc. v. Davis , 406 F.2d 1158, 1162 (5th Cir. 1969).

As Martinez-Ramirez concedes, his due process argument is foreclosed by Almendarez-Torres . Although Apprendi and Alleyne require that facts increasing the statutory maximum or minimum sentence must be submitted to a jury and proved beyond a reasonable doubt, they have preserved an exception for prior convictions. Alleyne , 133 S. Ct. at 2160-64 & n.1; Apprendi , 530 U.S. at 489-90. 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.

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[*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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.