*1 Before JOLLY, OWEN, and HAYNES, Circuit Judges.

PER CURIAM: ^[*]

Geronimo Cruz pleaded guilty to illegally reentering the United States and received a 33-month prison sentence to be followed by three years of supervised release. On appeal, Cruz 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. § 1326(a) because his indictment did not allege that he had a prior conviction permitting a higher sentence under § 1326(b).

*2 Case: 16-11747 Document: 00514165459 Page: 2 Date Filed: 09/21/2017

No. 16-11747

The Government has filed an unopposed motion for summary affirmance, asserting that Almendarez-Torres v. United States , 523 U.S. 224 (1998), forecloses Cruz’s argument. Cruz 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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.