Filed: Aug. 21, 2018
Latest Update: Mar. 03, 2020
Summary: Case: 18-10144 Document: 00514609036 Page: 1 Date Filed: 08/21/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-10144 FILED Summary Calendar August 21, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. DAVID NINO-FLORES, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:17-CR-409-1 Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges. PER CURIA
Summary: Case: 18-10144 Document: 00514609036 Page: 1 Date Filed: 08/21/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-10144 FILED Summary Calendar August 21, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. DAVID NINO-FLORES, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:17-CR-409-1 Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges. PER CURIAM..
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Case: 18-10144 Document: 00514609036 Page: 1 Date Filed: 08/21/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-10144 FILED
Summary Calendar August 21, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID NINO-FLORES,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-409-1
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
David Nino-Flores appeals the 27-month, within-guidelines prison term
imposed following his guilty plea conviction for illegally re-entering the United
States after removal. Raising one issue, Nino-Flores argues that his indictment
did not allege a conviction occurring before his removal and that, for this
reason, his prison term, imposed under 8 U.S.C. § 1326(b), was in excess of the
statutory maximum permitted under § 1326(a) and violated his due process
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10144 Document: 00514609036 Page: 2 Date Filed: 08/21/2018
No. 18-10144
rights. The Government has filed an unopposed motion for summary
affirmance and, alternatively, seeks an extension of time to file its brief.
As the Government argues and as Nino-Flores concedes, the only issue
raised on appeal is foreclosed by Almendarez-Torres v. United States,
523 U.S.
224 (1998). See United States v. Wallace,
759 F.3d 486, 497 (5th Cir. 2014);
United States v. Pineda-Arrellano,
492 F.3d 624, 625-26 (5th Cir. 2007).
Because the issue is foreclosed, 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, and the judgment is AFFIRMED. The Government’s alternative
motion for an extension of time to file its brief is DENIED.
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