UNITED STATES v. HORN (2018)

Byron Anthony Horn pleaded guilty to five counts of bank robbery in violation of 18 U.S.C. § 2113. The district court varied upward from the calculated guidelines range and sentenced Horn to 120 months of imprisonment.

In his brief, Horn argues that the district court plainly erred under the Fifth and Sixth Amendments by imposing a sentence based on findings that were not pleaded in the indictment and supported by proof beyond a reasonable doubt. The Government moves for summary affirmance or, alternatively, for an extension of time to file a brief on the merits. Horn does not oppose the motion for summary affirmance.

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). As he concedes, Horn’s argument is foreclosed by United States v. Tuma, 738 F.3d 681 (5th Cir. 2013), and United States v. Bazemore, 839 F.3d 379 (5th Cir. 2016).

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 as DENIED as unnecessary.

FOOTNOTES

FOOTNOTE.  

PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.