USA v. Geronimo Cruz

Filing

UNPUBLISHED OPINION FILED. [16-11747 Affirmed] Judge: EGJ, Judge: PRO, Judge: CH. Mandate pull date is 10/12/2017 for Appellant Geronimo Cruz; granting motion for summary affirmance filed by Appellee USA [8520166-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8520166-3] [16-11747]

Case: 16-11747

Document: 00514165459

Page: 1

Date Filed: 09/21/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-11747
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
September 21, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GERONIMO CRUZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-19-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *

Geronimo Cruz pleaded guilty to illegally reentering the United States
and received a 33-month prison sentence to be followed by three years of
supervised release. On appeal, Cruz 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. § 1326(a) because his
indictment did not allege that he had a prior conviction permitting a higher
sentence under § 1326(b).
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11747

Document: 00514165459

Page: 2

Date Filed: 09/21/2017

No. 16-11747
The Government has filed an unopposed motion for summary
affirmance, asserting that Almendarez-Torres v. United States, 523 U.S. 224
(1998), forecloses Cruz’s argument.

Cruz 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.

2