USA v. Jose Garcia-Puga

Filing

UNPUBLISHED OPINION FILED. [16-11676 Affirmed] Judge: JLW, Judge: JLD, Judge: LHS. Mandate pull date is 10/11/2017 for Appellant Jose Francisco Garcia-Puga; granting motion for summary affirmance filed by Appellee USA [8521483-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8521483-3] [16-11676]

Case: 16-11676

Document: 00514163221

Page: 1

Date Filed: 09/20/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-11676
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
September 20, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.

JOSE FRANCISCO GARCIA-PUGA, also known as Ernesto Salas-Ibarra,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:15-CR-387-1
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Jose Francisco Garcia-Puga pleaded guilty to illegal reentry into the
United States and was sentenced to 45 months of imprisonment and two years
of supervised release. On appeal, he argues that his indictment did not allege
that he had a prior conviction, and therefore, it was a violation of his due
process rights for the district court to impose a sentence 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11676

Document: 00514163221

Page: 2

Date Filed: 09/20/2017

No. 16-11676
§ 1326(b). He contends that his sentence exceeds the statutory maximum
sentence under § 1326(a).
The Government has filed an unopposed motion for summary affirmance
because Garcia-Puga’s argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998). As Garcia-Puga concedes that his argument is
foreclosed and is raised only to preserve it for further review, 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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