*1 Before REAVLEY, PRADO, and GRAVES, Circuit Judges.

PER CURIAM: ^[*]

Federico Ortiz-Lopez appeals the 37 month sentence imposed following his conviction of being found in the United States without permission, following removal. See 8 U.S.C. § 1326(a), (b). He contends that he was improperly sentenced under § 1326(b) because the statute is unconstitutional on its face. He also contends that the statute is unconstitutional as applied in *2 Case: 17-40045 Document: 00514122268 Page: 2 Date Filed: 08/18/2017

No. 17-40045

his case because his prior conviction was not alleged in the indictment or proved beyond a reasonable doubt.

Ortiz-Lopez acknowledges that his argument 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) need not be set forth in the indictment or proved beyond a reasonable doubt. 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.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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