United States v. Junior Herrera , 710 F. App'x 241 ( 2018 )

Case: 17-10336 Document: 00514332303 Page: 1 Date Filed: 02/01/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-10336
Fifth Circuit
Summary Calendar FILED
February 1, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
JUNIOR JOSE HERRERA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-233-1
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Junior Jose Herrera pleaded guilty to possession with intent to
distribute marijuana, and the district court sentenced him to 60 months of
imprisonment and three years of supervised release. Herrera now argues that
the district court plainly erred under the Fifth and Sixth Amendments by
imposing a sentence based on factual findings that were not supported by proof
beyond a reasonable doubt. He concedes that his argument is foreclosed under
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10336 Document: 00514332303 Page: 2 Date Filed: 02/01/2018
No. 17-10336
current circuit law, but he raises the claim solely to preserve it for further
review.
The Government has filed an unopposed motion for summary affirmance
or, alternatively, for an extension of time to file a brief on the merits. Summary
affirmance is proper where, 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). Because Herrera’s arguments are foreclosed
by United States v. Tuma, 738 F.3d 681 (5th Cir. 2013), the Government’s
motion for summary affirmance is GRANTED, and the judgment is
AFFIRMED. The alternative motion for an extension of time to file a brief on
the merits is DENIED as unnecessary.
2