United States v. Miguel Gutierrez

Case: 16-11795 Document: 00514218467 Page: 1 Date Filed: 10/31/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-11795
Fifth Circuit
FILED
Summary Calendar October 31, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
MIGUEL ANGEL GUTIERREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-212-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Miguel Angel Gutierrez pleaded guilty to illegally reentering the United
States after he had been removed and received a 46-month prison sentence to
be followed by three years of supervised release. On appeal, Gutierrez 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.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11795 Document: 00514218467 Page: 2 Date Filed: 10/31/2017
No. 16-11795
§ 1326(a) because his indictment did not allege that he had a prior conviction
permitting a higher sentence under § 1326(b).
The Government has filed an unopposed motion for summary
affirmance, asserting that Almendarez-Torres v. United States, 523 U.S. 224(1998), forecloses Gutierrez’s argument. Gutierrez 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, 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.
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