United States v. Jose Moncada-Delarosa

Case: 14-10332 Document: 00512784917 Page: 1 Date Filed: 09/29/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10332
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
September 29, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JOSE MONCADA-DELAROSA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CR-118-1
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Jose Moncada-Delarosa (Moncada) appeals the sentence imposed
following his guilty plea conviction for conspiracy to possess with intent to
distribute 50 grams or more of a mixture or substance containing
methamphetamine. For the first time on appeal, Moncada argues that,
following Alleyne v. United States, 133 S. Ct. 2151 (2013), any fact that
increases the range of reasonable sentences must be found by a jury beyond a
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-10332 Document: 00512784917 Page: 2 Date Filed: 09/29/2014
No. 14-10332
reasonable doubt. He asserts that the district court’s factual finding that he
was responsible for more than 1,200 grams of actual methamphetamine
violated his constitutional rights because it raised the range of reasonable
sentences that could survive appellate review.
As Moncada did not raise this issue in the district court, we review it for
plain error only. See Puckett v. United States, 556 U.S. 129, 135 (2009). To
show plain error, Moncada must show a forfeited error that is clear or obvious
and that affects his substantial rights. See id. If he makes such a showing, we
have the discretion to correct the error, but should do so only if the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.The Government has moved for summary affirmance on the ground that
the sole issue raised by Moncada is foreclosed. In United States v. Tuma, 738
F.3d 681, 693 (5th Cir. 2013), the defendant argued that Alleyne required that
any fact that increased his minimum sentence, including facts that raised his
guidelines range, must be found by a jury beyond a reasonable doubt. This
court rejected the argument, holding that Alleyne applied “only to facts that
increase a statutory mandatory minimum sentence.” Id. In the present case,
Moncada admitted to facts that established a statutory minimum sentence of
five years of imprisonment, and no judicially found facts increased the
statutory minimum sentence. See 21 U.S.C. § 841(b)(1)(B)(viii). Accordingly,
as Moncada concedes, his argument is foreclosed. See Tuma, 738 F.3d at 693.
The Government’s motion for summary affirmance is GRANTED. The
Government’s alternative motion to extend the time to file its brief is DENIED.
AFFIRMED.
2