
    UNITED STATES of America, Plaintiff-Appellee v. Mario MUNOZ-GARCIA, Defendant-Appellant
    No. 16-10726 Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    Filed March 2, 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, Federal Public Defender’s Office, Northern District of Texas, Fort Worth, TX, for Defendant-Appellant
    Before JONES, WIENER, and CLEMENT, Circuit Judges.
   PER CURIAM:

Mario Munoz-Garcia pleaded guilty to one count of being illegally present in the United States following deportation. The district court found that Munoz-Garcia’s

criminal history category was underrepresented and imposed a 72-month sentence, above the advisory guidelines range of 46-57 months in prison, to be followed by a three-year term of supervised release. In his only argument on appeal, Munoz-Garcia 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 Transport, Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).

As Munoz-Garcia concedes, his due process argument is foreclosed by Almenda-rez-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, and the judgment is AFFIRMED. The Government’s alternative motion for an extension of time to file a brief is DENIED. 
      
       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 Cm. R. 47.5.4.
     