     Case: 18-11214      Document: 00514948605         Page: 1    Date Filed: 05/08/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                    No. 18-11214                              May 8, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE ORTIZ-FLORES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-85-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Jose Ortiz-Flores appeals his 21-month, within-guidelines sentence for
illegally reentering the United States after deportation. Although Ortiz-Flores
admitted to only one prior removal, the district court found that he had three
prior removals, and that finding played some part in the sentence selected by
the district court. Citing the rule of Apprendi v. New Jersey, 530 U.S. 466, 490
(2000), Ortiz-Flores contends that the district court violated his Fifth and Sixth


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                No. 18-11214

Amendment rights because its choice of sentence was made absent a jury
finding as to the fact of his two additional prior removals. The Government
moves for summary affirmance, arguing that Ortiz-Flores’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). Ortiz-Flores contends that
the Supreme Court’s recent decision in Hurst v. Florida, 136 S. Ct. 616 (2016),
calls Tuma into question.
      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 a mandatory minimum sentence. 738 F.3d at 693. In Hurst, the Supreme
Court invalidated Florida’s hybrid capital sentencing scheme in which “the
maximum sentence a capital [defendant could] receive on the basis of the [jury]
conviction alone [was] life imprisonment,” and the defendant could receive a
death sentence only if the court made additional findings at a subsequent
sentencing proceeding. 136 S. Ct. at 620-21. In Bazemore, however, this court
rejected an argument similar to Ortiz-Flores’s, explaining that Hurst “applies
only to statutory schemes in which judge-made findings increase the maximum
sentence that a defendant can receive.” 839 F.3d at 392-93. Because Ortiz-
Flores’s 21-month sentence neither implicates a mandatory minimum nor
exceeds the statutory maximum, it raises no Sixth Amendment concerns.
Consequently, the Government is “clearly right as a matter of law” 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).      Ortiz-Flores
concedes that his argument is foreclosed, and he raises it only to preserve the
issue for future review.
      Accordingly, IT IS ORDERED that the Government’s motion for
summary affirmance is GRANTED. Its alternative motion for an extension of



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                                 No. 18-11214

time to file a brief on the merits is DENIED. The judgment of the district court
is AFFIRMED.




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