USA v. Diego Castilleja-Limon


UNPUBLISHED OPINION FILED.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]

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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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 2

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