
    UNITED STATES of America, Plaintiff-Appellee v. Victor MARTINEZ-RAMIREZ, Defendant-Appellant
    No. 16-10870 Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    Filed March 17, 2017
    James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney’s Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee
    Jerry Van Beard, Esq., Assistant Federal Public Defender, Michael Arthur Leh-mann, Federal Public Defender’s Office, Northern District of Texas, Fort Worth, TX, for Defendant-Appellant
    Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
   PER CURIAM:

Victor Martinez-Ramirez pleaded guilty to one count of being illegally present in the United States following deportation. The district court sentenced Martinez-Ramirez within the applicable guidelines range to 46 months of imprisonment, to be followed by a three-year term of supervised release. In his only argument on appeal, Martinez-Ramirez asserts that because the indictment did not allege his prior aggravated felony conviction, his sentence, which exceeded the two-year statutory maximum set forth in 8 U.S.C. § 1326(a), constituted a violation of his due process rights. He concedes that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), but he maintains that the reasoning of this case has been called into question by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

The Government has filed a motion for a summary affirmance or, alternatively, for an extension of time to file a merits brief. Summary affirmance is proper when, among other instances, “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,1162 (5th Cir. 1969).

As Martinez-Ramirez concedes, his due process argument is foreclosed by Almen-darez-Torres. Although Apprendi and Al-leyne require that facts increasing the statutory maximum or minimum sentence must be submitted to a jury and proved beyond a reasonable doubt, they have preserved an exception for prior convictions. Alleyne, 133 S.Ct. at 2160-64 & n.1; Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348. Accordingly, the Government’s motion for summary affirmance is GRANTED. The Government’s alternative motion for an extension of time to file a brief is DENIED. 
      
       Pursuant to 5th Cíe. 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.
     