United States v. Kelley

Case: 21-10042 Document: 00516009525 Page: 1 Date Filed: 09/10/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 10, 2021
No. 21-10042
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Bo Jack Kelley,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:20-CR-54-1
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Bo Jack Kelley appeals his within-guidelines sentence of 360 months
of imprisonment and 20 years of supervised release imposed following a
guilty plea conviction for production of child pornography in violation of 18
U.S.C. § 2251(a). Kelley argues that the district court plainly erred by using
*
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opinion should not be published and is not precedent except under the limited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: 21-10042 Document: 00516009525 Page: 2 Date Filed: 09/10/2021
No. 21-10042
facts not included in the indictment to determine the minimum and
maximum reasonable sentence in violation of the Fifth Amendment. He
concedes, however, that his claim is foreclosed by United States v. Tuma, 738
F.3d 681, 693 (5th Cir. 2013), but he wishes to preserve his claim for further
review. The Government has moved, unopposed, for summary affirmance
or, alternatively, for an extension of time to file a brief on the merits.
In Tuma, this court held that a district court may make findings of fact
that increase a defendant’s sentence if those facts do not expose the
defendant to an increased mandatory minimum sentence. Id. Here, the
judicial factfinding influenced only the advisory guidelines range and did not
alter the mandatory minimum sentence; the factfinding was thus within the
discretion of the district court. See id. Furthermore, Kelley’s sentence did
not exceed the statutory maximum term of imprisonment. Consequently, as
Kelley 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