USA v. Jose Conejo-Rodriguez

Filing

UNPUBLISHED OPINION FILED. [16-11408 Affirmed] Judge: EHJ, Judge: JLW, Judge: EBC. Mandate pull date is 06/27/2017 for Appellant Jose Conejo-Rodriguez; granting motion for summary affirmance filed by Appellee USA [8439106-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8439106-3] [16-11408]

Case: 16-11408

Document: 00514022205

Page: 1

Date Filed: 06/06/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-11408
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
June 6, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE CONEJO-RODRIGUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-73-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *

Jose Conejo-Rodriguez pleaded guilty to being found unlawfully present
in the United States and was sentenced to a term of imprisonment of 20
months to be followed by a three-year term of supervised release. On appeal,
he argues that his indictment did not allege that he had a prior conviction and,
therefore, he should have been sentenced under 8 U.S.C. § 1326(a).

He

contends that the district court exceeded the statutory maximum penalty by

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11408

Document: 00514022205

Page: 2

Date Filed: 06/06/2017

No. 16-11408
imposing a three-year term of supervised release under § 1326(b)(1) and, thus,
violated his due process rights.
The Government has filed an unopposed motion for summary
affirmance, because Conejo-Rodriguez’s argument is foreclosed by AlmendarezTorres v. United States, 523 U.S. 224 (1998). As Conejo-Rodriguez concedes
that his argument is foreclosed and is raised only to preserve it for further
review, a 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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