USA v. Ernesto Vazquez-Amparan

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UNPUBLISHED OPINION FILED. [16-51430 Affirmed ] Judge: PEH , Judge: EHJ , Judge: JES Mandate pull date is 09/01/2017 for Appellant Ernesto Vazquez-Amparan; granting motion for summary affirmance filed by Appellee USA [8501771-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8501771-3] [16-51430]

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Case: 16-51430 Document: 00514113505 Page: 1 Date Filed: 08/11/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-51430 Summary Calendar United States Court of Appeals Fifth Circuit FILED August 11, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ERNESTO VAZQUEZ-AMPARAN, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 2:16-CR-469-1 Before HIGGINBOTHAM, JONES and SMITH, Circuit Judges. PER CURIAM: * Ernesto Vazquez-Amparan pleaded guilty to illegal reentry into the United States and was sentenced to 30 months of imprisonment and three 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-51430 Document: 00514113505 Page: 2 Date Filed: 08/11/2017 No. 16-51430 § 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 Vazquez-Amparan’s argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). As Vazquez-Amparan 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. 2

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