
    UNITED STATES of America, Plaintiff-Appellee v. Federico ORTIZ-LOPEZ, also known as Federico Ortiz, Defendant-Appellant
    No. 17-40045 Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    Filed August 18, 2017
    
      Andrew R. Gould, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee
    Roberto Balli, Attorney, Laredo, TX, for Defendant-Appellant
    Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
   PER CURIAM:

Federico Ortiz-Lopez appeals the 37 month sentence imposed following his conviction of being found in the United States without permission, following removal. See 8 U.S.C. § 1326(a), (h). He contends that he was improperly sentenced under § 1326(b) because the statute is unconstitutional on its face. He also contends that the statute is unconstitutional as applied in his case because his prior conviction was not alleged in the indictment or proved beyond a reasonable doubt.

Ortiz-Lopez acknowledges that his argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 228, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that convictions used to enhance a sentence under 8 U.S.C. § 1326(b) need not be set forth in the indictment or proved beyond a reasonable doubt. Accordingly, the Government’s motion for summary affirmance is GRANTED, its alternative motion for an extension of time to file a brief is DENIED, and the judgment of the district court is AFFIRMED. 
      
       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
     