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United States Court of Appeals, Fifth Circuit.

UNITED STATES of America, Plaintiff-Appellee v. Armando CHAVEZ, Jr., Defendant-Appellant

No. 17-11463

Decided: July 27, 2018

Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee Kevin Joel Page, Federal Public Defender's Office, Northern District of Texas, Dallas, TX, for Defendant-Appellant

Armando Chavez, Jr., pleaded guilty to possession with intent to distribute methamphetamine, and the district court sentenced him within the advisory guidelines range to 188 months of imprisonment. Chavez argues that the district court plainly erred under the Fifth Amendment by imposing a sentence based on facts that were not alleged in the indictment. He concedes that his argument is foreclosed under 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 Chavez’s arguments are foreclosed by United States v. Tuma, 738 F.3d 681, 693 (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.



PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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