Case: 16-51436      Document: 00514143888         Page: 1    Date Filed: 09/06/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 16-51436                                  FILED
                                  Summary Calendar                        September 6, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JUAN LUIS RECENDIS-HERRERA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:16-CR-118-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Juan Luis Recendis-Herrera pled guilty to illegal reentry into the United
States and was sentenced within the advisory guidelines range to 60 months
of imprisonment and three years of supervised release. In his only argument
on appeal, he asserts that because the indictment did not allege that he had a
prior felony conviction, his sentence exceeded the two-year statutory maximum
sentence set forth in 8 U.S.C. § 1326(a) and violated his due process rights. He


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 16-51436    Document: 00514143888     Page: 2   Date Filed: 09/06/2017


                                 No. 16-51436

concedes that his argument is foreclosed by Supreme Court precedent but
states that he seeks to preserve it for possible future review. See Almendarez-
Torres v. United States, 

, 226 (1998). Recent decisions indicate
that the Supreme Court may reconsider the issue. See Alleyne v. United States,

, 2160 n.1 (2013).
      The Government has filed a motion for summary affirmance, or
alternatively, for an extension of time to file a 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, 

,
1162-63 (5th Cir. 1969).
      As Recendis-Herrera concedes, his due process argument is foreclosed by
Almendarez-Torres. The Supreme Court’s subsequent decisions in Apprendi v.
New Jersey, 

(2000), and Alleyne did not overrule Almendarez-
Torres. See United States v. Juarez-Duarte, 

, 211 (5th Cir. 2008);
United States v. Wallace, 

, 497 (5th Cir. 2014). Accordingly, the
Government’s motion for summary affirmance is GRANTED, and the
judgment is AFFIRMED.         The Government’s alternative motion for an
extension of time to file a brief is DENIED.




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