     Case: 16-11646      Document: 00514253034         Page: 1    Date Filed: 11/29/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                            United States Court of Appeals

                                    No. 16-11646
                                                                                     Fifth Circuit


                                  Summary Calendar
                                                                                   FILED
                                                                           November 29, 2017
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk

                                                 Plaintiff-Appellee

v.

WAYLAND DEMOND HINKLE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:14-CR-168-1


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
       Wayland Demond Hinkle pleaded guilty to possession with intent to
distribute cocaine, and the district court sentenced him to 188 months of
imprisonment. We vacated his sentence, holding that he did not qualify as a
career offender under the Sentencing Guidelines. United States v. Hinkle, 832
F.3d 569, 576-77 (5th Cir. 2016). On remand, the district court imposed an
upward variance from a guidelines range of 33 to 41 months and sentenced


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11646     Document: 00514253034        Page: 2   Date Filed: 11/29/2017


                                     No. 16-11646

Hinkle to 90 months of imprisonment and three years of supervised release.
Hinkle now argues that the district court plainly erred under the Fifth and
Sixth Amendments by imposing a sentence based on factual findings that were
not supported by proof beyond a reasonable doubt.             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 Hinkle’s arguments are foreclosed by
United States v. Tuma, 738 F.3d 681 (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.




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