USA v. Diego Castilleja-Limon

Filing

UNPUBLISHED OPINION FILED. [17-10324 Affirmed ] Judge: TMR , Judge: ECP , Judge: JEG Mandate issue date is 11/28/2017 for Appellant Diego Alberto Castilleja-Limon; granting motion for summary affirmance filed by Appellee USA [8549187-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8549187-3] [17-10324]

Case: 17-10324

Document: 00514226565

Page: 1

Date Filed: 11/06/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-10324
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
November 6, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DIEGO ALBERTO CASTILLEJA-LIMON,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-211-1
Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *

Diego Alberto Castilleja-Limon appeals his sentence of 16 months of
imprisonment and three years of supervised release for illegal reentry after
deportation. He argues that the district court erroneously determined that his
sentence was subject to an enhancement under 8 U.S.C. § 1326(b). He asserts
that his indictment did not allege that he had a prior conviction, and that

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10324

Document: 00514226565

Page: 2

Date Filed: 11/06/2017

No. 17-10324
therefore, the enhancement violated his due process rights because his
sentence exceeded the statutory maximum.
The Government has filed an unopposed motion for summary
affirmance, asserting that Almendarez-Torres v. United States, 523 U.S. 224
(1998), forecloses Castilleja-Limon’s argument.

Castilleja-Limon 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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