Luis Carlos De La Rosa-Rodriguez appeals his sentence of 30 months of imprisonment and three years of supervised release, which the district court imposed following his guilty plea conviction for illegal reentry. He argues that 8 U.S.C. § 1326(b)(2), which was used to enhance his sentence, is unconstitutional because it increases the statutory maximum sentence based on the fact of a prior conviction neither alleged in the indictment nor found by a jury beyond a reasonable doubt. He concedes that the issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he seeks to preserve the issue for further review. The Government moves for summary affirmance, asserting that De La Rosa-Rodriguezs argument is foreclosed.
The parties are correct that the sole issue raised on appeal is foreclosed by Almendarez-Torres. 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 Governments motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. The Governments alternative motion for an extension of time to file a brief is DENIED.
FOOTNOTES
FOOTNOTE
Per Curiam:*
FN* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.