United States v. Velasquez-Torres ( 2022 )

Case: 21-11012 Document: 00516243950 Page: 1 Date Filed: 03/17/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 17, 2022
No. 21-11012 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Jose Velasquez-Torres,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CR-344-1
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
Jose Velasquez-Torres appeals his sentence of 22 months of
imprisonment and three years of supervised release imposed following his
guilty plea conviction for illegal reentry after removal from the United States.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-11012 Document: 00516243950 Page: 2 Date Filed: 03/17/2022
No. 21-11012
The district court imposed the sentence as an upward departure under
U.S.S.G. § 4A1.3(a).
For the first time on appeal, Velasquez-Torres argues that the district
court violated his Sixth Amendment rights because its finding supporting
imposition of the § 4A1.3(a) departure—that his criminal history category
substantially underrepresented his criminal history and the likelihood that he
would commit other crimes—needed to be made by a jury beyond a
reasonable doubt. He contends that, even though the finding did not affect
the maximum or minimum mandatory sentence, it “altered the maximum
and minimum reasonable sentence.” He concedes that his claim is
foreclosed by United States v. Tuma, 738 F.3d 681 (5th Cir. 2013), but wishes
to preserve it for further review. The Government has moved, unopposed,
for summary affirmance or, alternatively, for an extension of time to file its
brief.
The district court’s factfinding did not alter the mandatory maximum
or minimum sentence. See Tuma, 738 F.3d at 693; see also United States v.
Hinojosa, 749 F.3d 407, 411-13 (5th Cir. 2014). Thus, as Velasquez-Torres
concedes and the Government asserts, his argument is foreclosed, such 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), and
summary affirmance is proper.
Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED. The
Government’s alternative motion for an extension of time to file a brief is
DENIED.
2