Case: 16-11747      Document: 00514165459         Page: 1    Date Filed: 09/21/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 16-11747                                FILED
                                  Summary Calendar                      September 21, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

v.

GERONIMO CRUZ,

                                                 Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-19-1


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).

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11747    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, 

(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, 

, 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.




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