     Case: 17-50221      Document: 00514358731         Page: 1    Date Filed: 02/22/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals

                                    No. 17-50221
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                     February 22, 2018
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


                                                 Plaintiff-Appellee

v.

JOSE CRUZ ADAME-HIPOLITO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:16-CR-433-1


Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jose Cruz Adame-Hipolito appeals his 36-month sentence for illegal
reentry after deportation. He asserts that his indictment did not allege that
he had a prior conviction and that, therefore, his sentence under 8 U.S.C.
§ 1326(b) violated his due process rights by exceeding the two-year statutory
maximum provided by § 1326(a).




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50221    Document: 00514358731    Page: 2   Date Filed: 02/22/2018


                                No. 17-50221

      The Government has filed an unopposed motion for summary
affirmance, asserting that Almendarez-Torres v. United States, 523 U.S. 224
(1998), forecloses Adame-Hipolito’s argument. Adame-Hipolito concedes that
his argument was rejected in Almendarez-Torres and explains that he raises it
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
