*1 Before JONES, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM: ^[*]

Jose Conejo-Rodriguez pleaded guilty to being found unlawfully present in the United States and was sentenced to a term of imprisonment of 20 months to be followed by a three-year term of supervised release. On appeal, he argues that his indictment did not allege that he had a prior conviction and, therefore, he should have been sentenced under 8 U.S.C. § 1326(a). He contends that the district court exceeded the statutory maximum penalty by *2 Case: 16-11408 Document: 00514022205 Page: 2 Date Filed: 06/06/2017

No. 16-11408

imposing a three-year term of supervised release under § 1326(b)(1) and, thus, violated his due process rights.

The Government has filed an unopposed motion for summary affirmance, because Conejo-Rodriguez’s argument is foreclosed by Almendarez- Torres v. United States , 523 U.S. 224 (1998). As Conejo-Rodriguez concedes that his argument is foreclosed and is raised only to preserve it for further review, a 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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.