Case: 19-50764      Document: 00515309632         Page: 1    Date Filed: 02/13/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 19-50764
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 13, 2020
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ABDIAS RODRIGUEZ-RAMIREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:19-CR-366-1


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Abdias Rodriguez-Ramirez appeals his within-guidelines sentence of 16
months of imprisonment and three years of supervised release imposed
following his guilty-plea conviction for illegal reentry. He asserts that the
enhancement of his sentence pursuant to 8 U.S.C. § 1326(b)(2), which
increased the maximum term of imprisonment to 20 years and the maximum
term of supervised release to three years, is unconstitutional because of the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50764    Document: 00515309632    Page: 2   Date Filed: 02/13/2020


                                No. 19-50764

treatment of the provision as a sentencing factor rather than as an element of
the offense that must be alleged in the indictment and proved to a jury beyond
a reasonable doubt.
      As Rodriguez-Ramirez concedes, this issue is foreclosed by Almendarez-
Torres v. United States, 

, 239-47 (1998). See United States v.
Wallace, 

, 497 (5th Cir. 2014); United States v. Rojas-Luna, 

, 505-06 (5th Cir. 2008). 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 Government’s alternative motion for an extension of time to
file a brief is DENIED, and the judgment of the district court is AFFIRMED.




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