     Case: 18-11580      Document: 00515037540         Page: 1    Date Filed: 07/17/2019




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

                                    No. 18-11580                            FILED
                                  Summary Calendar                      July 17, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

FRANKLIN YOBANY CRUZ-CARRASCO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:18-CR-294-1


Before HIGGINBOTHAM, GRAVES, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Franklin     Yobany Cruz-Carrasco           appeals his 18-month, within-
guidelines sentence for illegally reentering the United States after deportation.
Although Cruz-Carrasco argued for a 14-month sentence, the district court
found that the 18 U.S.C. § 3553(a) sentencing factors warranted a sentence at
the bottom of the applicable guidelines range. Citing the rule of Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000), Cruz-Carrasco contends that the district


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11580    Document: 00515037540     Page: 2   Date Filed: 07/17/2019


                                 No. 18-11580

court violated his Fifth and Sixth Amendment rights because its choice of
sentence was made absent a jury finding as to the § 3553(a) sentencing factors
cited by the district court. The Government moves for summary affirmance,
arguing that Cruz-Carrasco’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). Cruz-Carrasco contends that the Supreme Court’s 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 Cruz-Carrasco’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
Cruz-Carrasco’s 18-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). Cruz-Carrasco
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. 18-11580

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




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